[2019] UGSC 94

### ⁵ THE REPUBLIC OF UGANDA

# IN THE SUPREME COURT OF UGANDA AT I{AMPALA

## CRIMINAL APPEAL NO.59 OF 2016.

### [CORAM: MWANGUSYA, OPIO-AWERI, MUGAMBA, BUTEERA, JJ,SC. NSHIMYE, Ac JSCI

#### BETWEEN

KAIJA STEPHEN ::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::APPELLANT

#### VERSUS

#### UGANDA::::::::::::::::!::::::::::::::!!::::::::::::::::::::::::::::::::::::: RESPONDENT 15

[Appeal from the Judgement of the Court of Appeal (Kaule, Bossa and Obura JJAI in Criminal Appeal No. 728 of2Ol4 dated 28th October, 2o16l

# JUpGMEE=T OF TIIE CO\_qRT

This is a second appeal by the appellant against the sentence of 35 years imprisonment imposed on him by the Court of Appeal on 28th October, 2016 for the offence of murder contrary to sections 188 and 189 ofthe Penal Code Act. 20

### Background facts:

30 The facts of the case as found by the learned trial judge were that in the evening of 22"d May,2OO l,the appellant went for a drink from the bar of one Mugisha Joseph (PW3) at Karinda Village, Kyarusozi sub-count5r in Kyenjojo District. Kabukenya Anna Maria (the deceased) had earlier on gone to the same bar where there were other revelers. Kato Tomasi one of the revelers bought the appellant a glass of enguli. The appellant requested Mugisha to taste it first because of allegations that Mugisha's family were cannibals. The deceased laughed at the remark. After drinking half the glass of 25

.s enguli, the appellant became violent and abused the deceased for having laughed. Mugisha Joseph ordered the appellant to leave the bar. The appellant reacted by threatening that Mugisha would see what would happen and left the bar. The deceased later on left the bar with Kanyankole Irumba, Isingoma, Muhangi and another man. 10 Mugisha Joseph ordered all the people who were present to leave because of the commotion the appellant had caused at his residence and bar. He closed his business at round 8 pm.

Soon afterwards, an alarm was heard and Mutabazi Benedito (PW2), who was a brother to deceased answered it. He went to the house of 1s his neighbor, one Nathan TWinobusinrye, where he found Kanyankole. Kanyankole informed him that the appellant had thrown stones at them. Mutabazi saw the deceased's house on flames. He went there together with others and found that the house had already collapsed. He and Kanyankole proceeded to the zo Chairman's place to report. On their way they found a dead body along the road. Mutabazi identified that body as that of his sister Kabukenya.

After PW2 made his report to the Chairman, a drum alarm was sounded and many people gathered at the scene where the body was. The appellant did not answer the alarm. The police and a clinical officer, Duncan Kaundi (PW1), visited the scene the following day. The clinical oflicer carried out a post mortem examination on the deceased's body. His report showed that the cause of death was severe internal bleeding due to puncture of the right lung. 30

- .s The appellant made a charge and caution statement in which he admitted that he together with his co-accused had killed the deceased. He was tried and convicted of the offence of murder and sentenced to death while his co-accused was acquitted. He appealed to the Court of Appeal (Twinomujuni, Kitumba and Byamugisha 10 JJA) in Criminal Appeal No.69 of 2003 which upheld his conviction and sentence. The appellant further appealed to this court in Criminal Appeal No.25 of 2OO9, which set aside the death sentence and remitted his file to the High court for mitigation of sentence in accordance with this court's decision in Attorney General vs - rs Susan Kigula Constitutional Appeal No.3 of 2OO6. For the record in Susan Kigula this Court found that the mandatory death sentence was unconstitutional and resultantly that every convict, who was subject to the automatic death sentence and had not yet exhausted the appeal process was to be remitted to the High Court - zo for mitigation of sentence. Consequently in this case the mitigation proceedings were conducted before Murangira J and on July 16, 2014, he sentenced the appellant to 38 years imprisonment. The appellant appealed to the Court of Appeal which allowed his appeal and substituted the sentence of 38 years with that of 35 years zs imprisonment. Dissatislied with the decision of the Court of Appeal, the appellant has now appealed to this court.

The appeal is based on one ground as follows:-

"The Learned Justice of the Court of Appeal erred ln law to have reduced the sentence to only 35 years notwithstanding ³⁰ the compelling mtttgating factors available to the appellant."

- 5 On appeal, learned counsel Mr. Sseguya Samuel represented the appellant on state brief. Mr. George William Byansi, Senior Assistant Director of Public Prosecutions represented the respondent. Both counsel had filed written submissions which they adopted at the hearing. - 10 15 20 Counsel for the appellant submitted that when the Court of Appeal reduced the appellant's sentence from 38 years to 35 years imprisonment, it did not favorably consider the compelling mitigating factors such as that the appellant was 22 years at the time he was sentenced hence he was of a youthful age with the prospect of reforming and being reintegrated into society. Counsel mentioned also that the appellant committed the offence under the influence of alcohol. Counsel added that the appellant was a first offender. Counsel submitted that the 35 years imprisonment was harsh sentence. He prayed that this court allows the appeal and sets aside the 35 years imprisonment sentence for a shorter period.

In his written reply, counsel for the respondent submitted that the 35 years imprisonment imposed on the appellant was not harsh considering the fact that the maximum penalty for murder is death. He contended that the Court of Appeal considered all mitigating factors and that considering the circumstances of the case a sentence of 35 years imprisonment was not harsh.

# Decision of the Court:

The sole ground of appeal and the submission by counsel that the sentence of thirty live years was harsh is essentially an appeal against the severit5r of the sentence which offends Section 5(3) of

- the Judicature Act which provides that in the case of an appeal $\mathsf{S}$ against sentence and an order other than one fixed by Law, the accused person may appeal to the Supreme Court against the sentence or order, on a matter of Law, not including the severity of the sentence. - In the case of **Kiwalabye vs Uganda SCCA, No.143 of 2001**, this 10 court emphasizes the main considerations that the court will take into account before interfering with the discretion of the sentencing judge when it observed as follows:-

"The appellant Court is not to interfere with the sentence imposed by a trial Court where that trial Court has exercised 15 its discretion on sentence, unless the exercise of that discretion is such that it results in the sentence imposed to be manifestly excessive or so low as to amount to a miscarriage of justice, or where the trial court ignores to consider an important matter or circumstance which ought to be 20 considered while passing the sentence or where the sentence imposed is wrong in principle."

Further in the case of Ssekitoleko Yudah and Others vs. Uganda, SCCA No. 33 of 2014 this court held as follows:

"An appropriate sentence is a matter for the discretion of the 25 sentencing judge. Each case presents its own facts upon which a judge exercises his discretion. It is the practice that as an appellate court, this court will not normally interfere with the discretion of the sentencing judge unless the sentence is illegal or unless the court is satisfied that the sentence imposed by 30 the trial judge was manifestly so excessive so as to amount to an injustice." See also Ogalo s/o Owuora v. R (1954) 21 EACA 270 and R v. Mohamedali Jamal (1948) 15 EACA 126.

- This appeal does not demonstrate that the sentence was illegal. Of $\mathsf{S}$ course it was not. It was neither manifestly excessive nor so low as to amount to a miscarriage of justice. The killing of the deceased for laughing at a remark made by the appellant was so senseless that a heavy sentence was appropriate. - The Court of Appeal in re-evaluation of mitigating factors and 10 aggravating factors and considering the sentence of 38 years which was imposed on the appellant by the mitigating judge stated thus:-

"The learned mitigating judge considered mitigating and aggravating factors. He considered that the appellant was a first offender, who had spent 2 years on remand. He also 15 considered the social inquiry report and pre-sentencing report and concluded that the appellant had capacity to reform. The learned sentencing judge considered all submissions in mitigation. He also considered that the aggravating factors brought this case in the rarest of the rare cases. He considered 20 that the circumstances in which the deceased was murdered show that the killing was planned and brutal and that the actions of the appellant during the killing of the deceased fit very well in paragraph 20 of the Sentencing Guidelines comprised in Legal Notice No.8 of 2013. In the learned 25 sentencing judge's opinion, the appellant deserved a death sentenced him sentence. He however to 38 vears imprisonment, instead of 40 years which in his opinion, the appellant deserved. However, the learned mitigating judge did not consider the age of the appellant. Given that the appellant 30 was only 22 years old when he committed the offence. We find the sentence of 38 years imprisonment on higher side. We accordingly reduce it to 35 years imprisonment."

We note that both courts below took into consideration the appellant's age at the time of commission of the offence and 35

appreciated the fact that he was capable of being re-integrated into 5 society.

The youthful age of the appellant may be considered as a mitigating factor but it has to be weighed against the aggravating factors before an appropriate sentence is arrived at.

The two courts below arrived at the sentence after considering both 10 the mitigating factors and aggravating factors on record. We find the sentence of 35 years imprisonment imposed by the Court of Appeal on the appellant was appropriate.

In the result, we dismiss the appeal, and confirm the sentence of 35 years imprisonment passed by the Court of Appeal.

$q$ ^th day of Dated at Kampala this ... ....2019.

HON! JUSTICE ELDAD MWANGUSYA, JUSTICE OF THE SUPREME COURT. HON JUSTICE RUBBY OPIO -AWERI JUSTICE OF THE SUPREME COURT HON. JUSTICE PAUL K. MUGAMBA JUSTICE OF THE SUPREME COURT.

$\overline{7}$

HON JUSTICE RICHARD BUTEERA JUSTICE OF THE SUPREME COURT.

I

HON. AUGUSTINE NSHIMYE, A. G. JUSTICE OF THE SUPREME COURT.

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