[2025] UGCA 123

# THE REPUBLIC OF UGANDA

IN THE COURT OF APPEAL OF UGANDA AT MASAKA

[Coram: H Obura, C Gashirabake & E Luswata, JJA]

CRIMINAL APPEAL NO.41O OF 20I5

KAKOOZA EMMAIIUEL ......... APPELLANT

#### VERSUS

UGANDA RESPONDENT

(An Appealfrom lhe Judgment of the High Court at Masaka (Margaret C Oguli Oumo, J) Criminal Case No. 0129/201 1 delivered on the 2 l"t February 201 5)

## JUDGMENT OF COURT

[l]The appellant, Kakooza Emmanuel, was indicted with aggravated defilement contrary to section 129(3) &4(a) Cap 120 and now section 116 (3) & @)(a) of the Penal Code Act Cap 128. The particulars of the case were that the appellant, on the 09ft day of September 2007, at Kaliro (3) Village in Lyantonde Distric! performed a sexual act on KC, a person below 14 years of age. The court found him guilty and sentenced him to 35 years' imprisonment. Dissatisfied with the sentence, the Appellant filed a Memorandum of appeal against the sentence only on the ground that;

> The learned trial Judge erred in law and fact when she sentenced the Appellant to 35 Years imprisonment, which sente case. nce is harsh and excessive in the circumstances the

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[2] The Respondent opposed the appeal.

## Representation

[3]At the hearing, the Appellant was represented by Mr. Ezra Mulindwa on State brief. The Respondent was represented by Ms. Anna Kiiza, Chief State Attomey.

# Submissions by Counsel for the Appellant

- f4]Counsel faulted the sentencing Judge for misapplying the principle of consistency while passing down the sentence against the Appellant' Counsel argued that considering the sentences of similar offences, the sentence of 35 years was manifestly excessive and harsh. Counsel cited Rwabugande Moses Vs. Uganda, [2017] UGSC 8, to the effect that the appellate court can only interfere where the sentence is illegal or manifestly excessive and harsh, failure to exercise discretion, or failure to take into account a material factor or an error of principle. - [5] Counsel argued that the trial Court considered the enlisted aggravating factors, overlooking the principle of consistency as provided under Guideline No. 6 of the Constitution (Sentencing Guidelines for Courts of Judicature) (Practice) Directions 2013 (Sentencing Guidelines). - t6] With regard to similar cases, counsel cited Anyugo Silivia Vs. Uganda' CACA No. 655 of 2014, where this court found that in the absence of aggravating factors like HIV, the sentencing range for aggravated defrlement should be between I 1 to 15 years. He also cited Cheptoyek Job Vs. Uganda, CACA No. 262 of 2016, [2023] UGCA 69, to the effect that the court shall consider the age ofthe Appellant while passing sentence. He argued that at29 years, the Appellant had an opportunity to reform hence, 35 years was harsh and excessive. Counsel proposed a sentence of 10 years.

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# Submissions by Counsel for the respondent

- [7] Counsel argued that the appellant has not demonstrated how the sentence of 35 years' imprisonment is manifestly excessive and harsh in light of the maximum sentence of death for aggravated defilement under section 129 (3) and 4(b) of the Penal Code Act Cap 120, and the Sentencing guidelines (supra). - [8]Counsel argued that for a sentence to be manifestly excessive and harsh, the sentence should be over and above the prescribed sentence by law, which was not the case here. Counsel submitted that the court cannot interfere with the discretion of the sentencing Judge where such discretion was properly exercised. He cited Kiwalabye Vs. Uganda CA 143 of 2001 and Kawooya Joseph Vs. Uganda Criminal Appeal No 512 of 2014, (2014) UGHCCRD 3. - [9] Additionally, counsel submitted that the trial court cannot be faulted because it considered both the mitigating and aggravating factors as presented before the court. - [10] In referring to the principle of consistency, Counsel cited Aharikundira Yustina Vs. Uganda, [2018] UGSC 49, where the court found that the principle of consistency is vital in a sentencing regime and is rooted in the rule of law. He further cited Sseruyange Yuda Tadeo Vs. Uganda, CACA No. 080 of 2010, l2022lUGCA 103, where the court found a sentence of 29 years appropriate. He further relied on Othieno John Vs. Uganda, CACA No 174 of 2010, where the court found a sentence of 29 years appropriate and Opio Moses Vs. Uganda, CACA No. ll8 of 2010, where ^a sentence of 22 years was found appropriate. - [11] Counsel prayed that this court hnds that the sentence of 35 years' imprisonment was appropriate in the circumstance of the case.

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# ANALYSIS

### Role of the First Appellate Court

- U2l Under Rule 30(1) of the Judicature (Court of Appeal Rules) Directions, 2005, the duty of this court as the first appellate Court is to re-evaluate the evidence on record and come to its own conclusions. This was re-echoed in Henry Kifamunte Vs. Uganda, U9981 UGSC 20. - [13] Regarding the argument that the trial Judge passed a manifestly excessive and harsh sentence, we are guided by the fact that the maximum sentence for the offence of aggravated defilement is death under Section 129(3) of the Penal Code Act, Cap 128, and the Constitution (Sentencing Guidelines for Courts of Judicature) (Practice) Directions, 20 13. The Supreme Court in Aharikundira Yustina Vs. Uganda (supra) held that;

"There is a high threshold to be met.for an appellale 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 matler of judicial discretion; therefore, perfect uniformity is hordly possible. The key word is "manifestly excessive". An upqallale court will onlv intervene where the senlence imposed exceeds the permissible ranpe or sentence variation. " (Emphasis ours)

[4] According to the third schedule of the sentencing guidelines, the starting point for the offence of aggravated defilement is 35 years. We are also guided by the position of the law on consistency laid down in the case of Aharikundira Yustina Vs. Uganda, (supra). We are further guided by the decision of this court in Acidiri Micheal Vs. Uganda, Court of Appeal, Criminal Appeal No. 0406 of20l6, the court reduced a sentence of35 years' imprisonment to a sentence of 25 years' imprisonment. In Buy I a

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Vs. Uganda, Court of Appeal, Criminal Appeal No. 0213 of 2010, this court upheld a sentence of25 years' imprisonment. It has to be appreciated that the principle of consistency is not a mechanical process, but the court is guided by the circumstances of each case.

- [15] We find that the sentencing Judge was alive to both the mitigating and aggravating circumstances. She noted in mitigation that the appellant was an adult of 29 years with two children and was remorseful. She also noted that the offence was rampant and it had caused both physical and psychological impact on the community and the girl child. - [16] We have considered all the mitigating and aggravating factors. We also note that aggravated defilement carries a maximum sentence of death. - ll7) While sentencing, the trial Judge held that;

"Kakooza Emmanuel was indicled.for aggrovated deflement C/5, 2a(3), (a)@) ofthe Penal Code Act.

The particulars are that, Kakooza Emmanuel alias Kiramujaanyi Malipo on the 9.09.2007 at Kaliro village in the Lyantonde district performed a sexual act with Kyasiimirwe Charity, a person under the age of l4 years.

The accused denied the offence and wos convicted to afull trial

Having heard the submissions of both the prosecution and his defence regarding his evidence and his ov'n statement in mitigation; and having noted that the olfence with a kid he was colNicted carries a maximum sentence ofdeath on conviction. Court takes note of the fact that he is adult reith 2 children, is 29 years old but that he claimed her remorseful; there is evidence where he was released earlier, he went back and defiled the child who was only 9 years, probably os old as his own chilclren

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The defence, aggravated defilement hss become rampanl in society and is being coused by men with impunity such conduct, which has affected the children both physically and psychologically ought to be punished to show the would be offenders and stop the court .from...... in ..... out of the court.

in that r?spect, the court sentences him to thirty-five (35) years imprisonment, taking into account the years he has been on remand.

he has a right to appeal against the conviction and sentence."

- [18] Whereas the trial Judge took note of the time spent on remand, she did not adhere to the arithmetic deductions as required in Rwabugande Moses Vs. Uganda (supra). In this case, it was noted that Article 23(8) makes it mandatory and not discretionary that a sentencing judicial officer arithmetically accounts for the time spent on remand. So we fault her for that and find the sentence illegal. We, therefore, invoke the power of this court under section 11 of the Judicature Act and set aside the sentence of35 years' imprisonment handed down by the trial Judge. We sentence the appellant afresh to 25 years of imprisonment. Though he was a young offender and has the potential to reform and be a useful member of society, he committed a very serious offence whose maximum punishment is the death penalty. - [19] We are satisfied that a sentence of 25 years is appropriate. We shall deduct the 3 years, 4 months, and 14 days the appellant spent on remand. The appellant shall serve the sentence of2l years,T months and 16 days from the date of conviction by the Trial Court

### We so Order

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Dated, signed and delivered this .1.9. day of Morch... 2025

. . . . .

**HELLEN OBURA**

**JUSTICE OF APPEAL**

**CHRISTOPHER GASHIRABAKE**

**JUSTICE OF APPEAL**

EVA K LUSWATA **JUSTICE OF APPEAL**

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