[2022] UGCA 276

# THE REPUBLIC OF UGANDA

# IN THE COURT OF APPEAL OF UGANDA AT KAMPALA

[Coram: Musoke, Gashirabake & Luswata, JJA]

### CRIMINAL APPEAL NO. 370 OF 2019

(Arising from Criminal session No. 0006 of 2018)

KAKEETO JOSEPH .................................... 10

### **VERSUS**

## <table> UGANDA ...................................

[Arising from the decision of Henry Kawesa, J., the High Court of Uganda sitting at Mpigi in *Criminal Case No. 0006 of 2018 dated 25^th September 2019]*

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### **JUDGMENT OF COURT.**

### Introduction.

The Appellant was indicted and convicted of the offence of Murder contrary to **Sections 188 and 189 of the Penal Code Act.** The particulars of the offence were that Kakeeto Joseph on 24^th April, 2017 at Kweri village in Kamengo sub county,

Mpigi with malice aforethought unlawfully caused the death of Kisenyi Peter. 20

The trial court found the Appellant guilty and sentenced him to serve 25 years of imprisonment. Dissatisfied with the decision of the trial court the Appellant filed this Appeal on grounds that:

'1. The learned Judge erred in law and fact when he failed to appraise, evaluate and adequately scrutinise the prosecution evidence in *absence of the police witnesses' testimony alongside defence thereby wrongly convicted the Appellant of the offence of murder.*

2. *The learned judge erred in law and fact when he imposed upon the Appellant a harsh excessive custodial imprisonment of 25 years without deducting remand period'.*

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- 5 -l'hc Appellant praycd that: - 1. I Iis appcal bc allowcd and conviction bc quashed. - 2. Orders of thc trial Court bc sct aside.

'l'he Itcspondent opposcd thc appeal.

### Ii.eprescntation

'l'hc Appellant was rcprcsentcd by Mr. Seth Rukundo. 'l'hc Respondcnt was rcprescnted by Ms. Ann Kabajungu. 10

# Ground I

# Submissions of counscl for the Appellant.

Counsel for the Appellant submitted that thc thcrc was no police officcr witncss to supporl thc casc o1' thc prosccntion. Counscl furthcr subrnittcd that thc nonproduction of thc Policc testimony left a corroborativc link to thc Appcllant as thc perpetrator of the oflbncc of murder. Counscl argucd that the non- production of thc cvidcncc of thc investigating police ofl'rccr rcndercd thc indictmcnt ol' rnurdcr contrary to Sections 188 and 189 of the Penal Code, not proved bcyond rcasonablc 15

doubt. 20

> Additionally, counscl sr-rbmittcd that thc lcgal rccluircrncnt is lor corroboration oldcath through a dcath ccrtificatc.

> Counsel lurther submittcd that thcrc was no cvidcncc ol'proper idcntification of tl-rc Appcllant as thc onc who killcd thc dcccascd. Counscl lbr thc Appcllant subrnittcd

that thcrc was no cvidcncc to placc the Appcllant at the sccnc ol'thc Crirnc. 25

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# s Submissions of counscl for the llcspondent.

Counsel for thc Itespondcnt cited Scction 133 ol-thc Irvidcncc Act which providcs that no parlicular numbcr o1'witncsscs arc requircd to prove any particular lact. 'l'hc abscncc of thc investigating officcr was thcrclorc immatcrial sincc thc prosccution provcd its case bcyond reasonablc doubt.

#### Counsel citcd Ntambala Fred vs. Uganda SCCA No.34 of 2015, whcrc courl hcld that: 10

"a conviction can bc solcly bascd on thc tcstirnony of'thc victitn as a singlc witncss, providcd thc courl finds hcr to bc trulhlirl and rcliablc. 'l'his was slatcd by this courl in Scwarryana Livingstonc vs. lJganda SCCA No. 19 ol'2006, what matlcrs is thc quality and not quantity of'cviclcncc."

Iiurlhcrmorc, counsel argtrcd that a close scrutiny of S. 40 (3) of the 'l'rial on Indictmcnt Act rcvcals that it is the unsworn cvidcncc of tcndcr ycars that cannot bc rclicd on unlcss corroboratccl by other matcrial cvidcncc. All witncsscs arc sworn. So the provisions o1'scction 40(3) are not applicablc in this mattcr. C'ounscl citcd

### Senyondo Umar vs. Uganda CACA No. 267 of 2007 and Patrick Akol vs. Ug. SCCA No. 23 of 1992. 20

Counsel submitted thatthc trial Judgc evalualed thc cvidcncc of all thc prosccution witncss and propcrly lound that thc prosccution had provcd its casc bcyond reasonable doubt.

It was lurthcr submittcd that the cvidence of PWI and PW2 is ol'thc pcople who saw thc action at thc sccnc.'l'hc Appcllant was thcrelorc propcrly idcntilicd by scvcral witncsscs. 25

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#### **Analysis** $\mathsf{S}$

## **Duty of this Court**

In resolving issues raised on this appeal, this court is mindful of its duty as the first Appellate court to re-evaluate, reappraise and review the evidence on the record of 10 appeal which was before the trial court and come out with its own conclusions. See Rule 30(1) of the Rules of this Court and Kifumante Henry vs. Uganda, **Supreme Court Criminal appeal No. 10 of 1997.**

We agree with the submissions of counsel for the Respondent that the law does not require the prosecution witness to adduce a number of witnesses before they can 15 secure a conviction against the Appellant. It is well settled that in section 133 of the Evidence Act, no particular number of witnesses is needed to prove any fact and a conviction can be based on evidence of a single identifying witness as long as the prosecution has proved the ingredients beyond reasonable doubt with the witnesses

- that have been produced before court. See **Christopher Bagonza vs. Uganda** 20 **Criminal Appeal No. 25 of 1997.** It is therefore inconsequential that the prosecution chose not to adduce the investigating officer as a witness in this case. The evidence of the identifying witness alone were sufficient in placing the appellant at the scene of crime. - As regards the identification of the Appellant as the perpetrator, the test of proper 25 identification was set out in Abdalla Bin Wendo vs. R, [1953]20 EACA 166, and these are:

'1. Whether the accused was known to the witness before the offence.

- 2. The condition of the lighting used for identification - 3. The distance from which the identification was made.

4. The length of time during which the accused was identified'.

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We are satisfied that the test of identification was satisfied. To prove their case, the $\mathsf{S}$ prosecution brought 3 witnesses, including PW2 and PW 3 who testified that they saw the Appellant run from the scene. The Appellant was well known to them. The time of day was early in the morning between 9 am and 10 am. The light at that moment was sufficient to enable a person make proper identification. The length of observation and distance was conducive for a person to be identified by the 10 witnesses.

It is therefore our finding that there was proper identification of the Appellant as the perpetrator of the offence of murder contrary to section 188 and 189 of the Penal Code Act.

We therefore find no reason for faulting the trial Judge on this ground. 15

# $$

# **Submissions of counsel for the Appellant.**

Counsel for the Appellant submitted that the sentence of 25 years of imprisonment handed down to the Appellant was harsh and excessive. It was also illegal because the court did not deduct the years the Appellant had spent on remand. Counsel **cited** Mateka vs. R, 1971 EA 512 cited in Adukule Natal vs. Uganda CACA No. 10 **2000.** He prayed that the 25-years imprisonment be reduced to 15 years.

# **Submissions of counsel for the Respondent.**

Counsel for the Respondent submitted that the Appellant was convicted for murder which carries a maximum sentence of death. In passing the sentence, the learned trial 25 judge analysed all the mitigating factors raised on the Appellant's behalf.

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⁵ Counscl furthcr subrnittcd thatthis court can only intcrfcrc with thc sentcncc of thc trial court if the trial court actcd on wrong principlcs, ovcr lookcd somc rnatcrial factors, or thc scntcncc was manil'cstly cxccssivc.

Considcring the prcvious dccisions in similar olfcnccs counscl citcd Ilukenya Stcphen vs. Uganda, Court of Appeal Criminal Appcal No. 0051 of 2007, whcrc this court rnaintaincd a scntcncc of lil-c imprisonmcnt that had bccn handcd down by thc trial court.

In Scbuliba Siraji vs. Uganda, CACA No. 0319 of 2009, this court did not scc any justification to intcrlbrc with thc discrction ol- thc trial court in awarding a lil'c scntcncc lor murdcr.

Counscl submitted that thc trial Judgc thcrelorc propcrly cxcrciscd his discrction in corning up with the scntcncc of 25 ycars. 'l'hc judgc wcnt ahcad to indicatc that thc scntcncc will run frorn the first day of rcmand. Which indicatcd that hc had considcred thc timc spcnt on remand. 15

Counscl argucd that this court should uphold thc said scntcncc sincc its irnposition was not bascd on thc wrong principle of law ncithcr did thc court ovcrlook any matcrial factor of cvidcncc. 20

# Considcration of Court

It is now scttlcd law that for an appellate court to intcrlcrc with thc discrction of'thc trial court whilc passing scntcncc, it must bc shown that thc scntcncc is illcgal or loundcd upon a wrong principlc of thc law, or whcrc thc trial court lailcd to takc into account an important matter or circumstance, or rnadc an crror in principlc, or imposcd a sentcncc which is harsh and manilcstly exccssivc in thc circumstanccs. Scc: Kiwalabyc llernard vs. Uganda, Supreme Court Criminal Appcal No. 143 of 2001.

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While sentencing the Appellant, the court stated that : $\mathsf{S}$

> "Accused is a first offender. The maximum sentence is death. The aggravating factor is that accused used violence on a vulnerable old aged person. There is also no indication of remorse. In mitigation accused is a first offender, has a family and prays for leniency. Accused is sentenced with a view to deter and rehabilitation. He is sentenced to 25 years running from the first day of remand."

In the judgment it is evident that the trial court was alive to both the aggravating and mitigating factors. In establishing whether the sentence is manifestly harsh or excessive this court is guided by the principle of consistency under **Principle No.**

## 6(c) of the (Sentencing Guidelines for Courts of Judicature) (Practice) 15 **Directions, 2013** which provides that:

"Every court shall when sentencing an offender take into account the need for consistency sentencing an offender take into the need for consistency with appropriate sentencing levels and other means of dealing with offenders in respect of similar offences committed in similar circumstances"

The purpose of this provision is to ensure uniformity while sentencing similar offences by considering what ranges the courts have been considering in handling similar matters. This principle is entrenched in our Constitution under Article 21(1) which guarantees that all persons are equal before the law. This doctrine of equality mandates this court to hand down similar sentences in offences that occurred under similar circumstances.

Considering the precedents set by the Supreme court in similar offences, in Aharikundira vs. Uganda, SCCA No.27 of 2015, the Supreme Court reduced a sentence from a death sentence to 30 years imprisonment. And in **Mbunya Godfrey** vs. Uganda, SCCA No.004 of 2011, the Supreme Court set aside the death sentence

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imposed on the Appellant for the murder of his wife and substituted it with a sentence $\mathsf{S}$ of 25 years imprisonment.

In the circumstances of this case the sentence of 25 years would not be considered manifestly harsh or excessive.

However, it is not clear whether the trial judge actually considered the time the Appellant had spent on remand. Failure to consider the years spent on remand $10$ renders the sentence illegal. The trial judge just mentioned that the sentence runs from the first time the Appellant was remanded. This is very vague.

In Article 23(8) of the Constitution of the Republic of Uganda 1995, as amended stipulates that:

> "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."

Principle 15 of the Sentencing guidelines (*Supra*) is instructive as well. The principle provides that: 20

## "Remand period to be taken into account.

(1) The court shall take into account any period spent on remand

in determining an appropriate sentence.

(2) The court shall deduct the period spent on remand from the

sentence considered appropriate after all factors have been taken into account."

In Byamukama Herbert vs. Uganda, Criminal Appeal No. 21 of 2017, which cited with approval in Abele Asuman vs. Uganda, Criminal Appeal No. 66 of **2016,** where court held that

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"tlris courl has prcviously guidcd that scntcncc arrivccl at without taking into considcration thc pcriod spcnt on rcnraltd is illcgal ltrr lailtrrc to cornply'uvith a nrandatory constitutional plovision"

'l'hc requircmcnt of deducting thc pcriod spent on rcmand is couchcd in mandatory tcrms. Any court that passcs a sentencc without considcring thc titnc spcnt on remand, thc scntencc is thercforc illegal becausc it offends thc provisions ol'thc Constitution.

'l'hc sentcncing rcgirnc has cvolvcd within a short pcriod. I)rcviously, thc c<lurts would just takc note of thc pcriod spcnt on rccord, but that changcd with thc Suprcmc Court dccision dclivcrccl on 3'd March 2017 in llwabugande Moscs vs. Uganda (Supra) which was to thc eflcct that whilc scntcncing, thc court ought to arithmctically takc into account the pcriod spcnt on rcmand, bccausc thc pcriod is known with prccision.

'l'hc position ol'thc law in llwabugandc Moses vs. Ugan da ( Supra) was short livcd, whcn the Suprcmc Courl on thc lgtl'April 2018 dclivercd a diflcring position in

20 Abcllc Asuman vs. Uganda, Criminal Appcal No. 66 of 2016, ncarly a ycar alicr. stating that thc arithmctical dcduction is not ncccssary bccausc thc scntcncing.iudgc has choicc to cither arithmctically dcduct thc scntcncc or not, as a mattcr ol'stylc.

'l'hc position in Abellc (Supra)dclivcrcd in20lti, was also short livccl as thc position irr Ilwabugandc was upheld in Scgawa Joscph vs. Uganda, Criminal Appcal No. 65 of 2016, thc Suprcmc Court on thc 6'r'Octobcr 2021 hcld that:

> "'l'his courl is bouud to lbllow its carlicr clccisions fbr thc purposc <11'nrainlainiug thc principlc o['starc dccisis.'l'his court has thc duty to clccidc rvhiclt clccision is to bc lbllorvcd. Our apprccialion ol-Arliclc 23(8) ol'thc constitutiott is that thc considcration by court ol'thc pcriocl spcnt orr rcmancl by a convict is utanclatory.

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A sentencing judge is under a duty to consider the exact period spent on remand in upholding the provisions of the supreme law of the land. For avoidance of imposing ambiguous sentences, we hold that the period spent on remand must be arithmetically deduced. This renders justice to a convict. We therefore find that the **Rwabugande case** is the correct position of the law in matters where the Appellant challenged the legality of sentence in relation to whether or not court rightly considered the provisions of Article 23(8) of the constitution."

As noted above, it is not clear whether the trial judge did take into consideration the period spent on remand by the Appellant as required under Article 23 (8) of the Constitution. The judgment in this case was delivered on the 25^th of September 2019, by then the legal regime in force was the law in **Abelle** (*Supra*) where the sentencing 15 court was at liberty to either arithmetically deduct the years or just take into consideration the period spent on remand. Considering the fact that the judge just stated that the sentence starts running from the first time the Appellant was on remand was vague. The Judge did not actually take into account the 2 years the Appellant spent on remand. 20

That said, pursuant to **Section 11 of the Judicature Act** and also in line with **Article** 23(8) of the 1995 Constitution, we proceed to exercise the powers of the trial Court by re-sentencing the Appellant by imposing a sentence we think is appropriate in the circumstances. In arriving at the most appropriate sentence we have considered the mitigating and aggravating factors. We set aside the illegal sentence of 25 years and we replace it with 23 years having deducted the 2 years spent on remand by the Appellant. This sentence starts running from the date the judgment was passed. To be specific 25^th September 2019.

We so order.

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| $\overline{a}$<br>$\mathsf{S}$ | Dated at Kampala this<br>Of Nov<br>$\ldots$ 2022 | |--------------------------------|---------------------------------------------------| | | | | | <b>ELIZABETH MUSOKE</b> | | 10 | <b>JUSTICE OF APPEAL</b> | | | | | | <b>CHRISTOPHER GASHIRABAKE</b> | | 15 | <b>JUSTICE OF APPEAL</b> | | | EVA K. LUSWATA | | | <b>JUSTICE OF APPEAL</b> | | | $\cdot\,$ |

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