[2025] UGCA 155

# THE REPUBLIC OF UGANDA IN THE COURT OF APPEAL OF UGANDA AT MBARARA CRIMINAL APPEAL NO. 106 OF 2016

# KANYESIGYE JUSTUS AKA MWOOJO ::::::::::::::::::::::::::::::::::

#### **VERSUS**

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

(Appeal from the decision of the High Court of Uganda at Mbarara before Duncan Gaswaga, J dated 20^th April, 2016 in High Court Criminal Session Case No. 123 of 2012)

(Coram: Moses Kazibwe Kawumi, Justice Florence Nakachwa & Cornelia Sabiiti Kakooza, JA)

## **JUDGMENT OF THE COURT**

The Appellant was convicted of the offence of murder contrary to $1.$ Section 188 and 189 of the Penal Code Act, Cap. 120 and sentenced to imprisonment for 50 years. The particulars of the offence were that the Appellant on the 1^st day of November, 2011 at Mukoni Cell in Ntungamo District murdered a person called Mugabo James. He was tried and sentenced to a custodial sentence to imprisonment for 50 years. He now appeals only against sentence on the following grounds:

1. That the learned trial Judge erred in law and fact when he imposed a harsh and excessive sentence of 50 years imprisonment on the appellant.

2. That the learned trial Judge erred in law and fact when he failed to account and deduct the Appellant's period spent on remand from the sentence imposed on him.

At the hearing of the appeal, Counsel Namusisi Princess Benita $2.$ appeared for the Appellant on state brief. The Respondent was represented by Counsel Batson Baguma, Chief State Attorney from the Office of Director of Public Prosecutions. Both parties filed their respective written submissions which are considered hereunder.

## **Duty of First Appellate Court**

As a first appellate court, our duty is to review and re-evaluate the $3.$ evidence before the trial court, draw inferences therefrom and reach our own conclusions, bearing in mind that this court did not have the opportunity to hear and observe the witnesses testify as the learned Judge did. (Refer to Rule 30 (1) (a) of the Judicature (Court of Appeal Rules) Directions, 2013 and the case of Mbazira Siraii & Anor v. Uganda, Criminal Appeal No. 7 of 2004 (SC)). We shall proceed to determine the arounds of this appeal.

#### Ground 1

The learned trial Judge erred in law and fact when he imposed a harsh and excessive sentence of 50 years' imprisonment on the appellant.

#### **The Appellant's submissions**

The Appellant's counsel submitted that the learned trial Judge, while $4.$ sentencing the Appellant, ignored his mitigating factors and concentrated on the aggravating factors at page 26 of the record of proceedings.

That the trial Judge exercised harshness and malice while sentencing the Appellant.

$\overline{2}$

That the Appellant prayed for lenience and he said that he felt pain for the deceased's family which showed that he was remorseful and realized that his actions were wrong. The Appellant's counsel argued that the Appellant was 20 years old at the time of his arrest and that he has hopes of rehabilitation and re-integration once given a lesser sentence and his young age falls in the age bracket of abled Ugandan citizens who could be of good use in cheap labour upon being released from prison. That the Appellant pleaded that he was looking after his siblings single handedly but the same was ignored. That his period spent on remand was never accounted for.

The Appellant's counsel argued that had the trial Judge not been so $5$ inclined on the prosecution's aggravating factors and overlooked the Appellant's mitigating factors, he would not have given such a harsh and excessive sentence. (Counsel cited the case of Aharikundira Yustine v. Uganda, SCCA No. 27/2015). Counsel stated that the sentence of 50 years' imprisonment given by the trial Judge violates the consistency principle of sentences imposed on convicts in murder cases of a similar nature. Counsel prayed that this honourable court considers sentences previously passed in the above cases and reduce the 50 years to 20 years.

## **The Respondent's Submissions**

On the other hand, the Respondent's counsel does not agree with the 6 Appellant's submission that the learned trial judge ignored the mitigating factors and concentrated on the aggravating factors such as age of the Appellant, being first offender, remorsefulness and the situation of the Appellant namely that he had responsibility to look after his siblings.

Referring to the case of Ssemaganda Sperito & Anor v. Uganda, $7.$ COA Criminal Appeal No. 456 of 2016, the Respondent's counsel submitted that the learned trial Judge properly exercised his discretion and considered all the mitigating factors as well as the aggravating factors before arriving at a sentence of 50 years for the offence of murder. That the learned trial Judge did consider all the mitigating factors including the age of the Appellant before arriving at the sentence imposed. That the trial Judge did not have to restate the mitigating factors in his sentencing notes since that is just a matter of style.

The Respondent's counsel submitted that the learned trial Judge was 8. alive to the principle of consistency and uniformity and that the offence of murder carries a maximum sentence of death and the starting point is 35 years. That the learned trial Judge could have imposed a death sentence or life imprisonment but he opted for a sentence of imprisonment which was lenient enough after considering all the circumstances.

Counsel argued that concerning the allegations of malice and bias 9 alluded to by the learned defense counsel, no evidence has been pointed out to demonstrate that the learned Judge was biased or malicious against the Appellant and there is nothing to fault his exercise of discretion in sentencing the appellant to 50 years. Counsel prayed that the first ground of the appeal should be dismissed for lack of merit.

#### **Court's analysis**

We have carefully perused the record of appeal, the parties' 10. submissions and the authorities cited to us. Since sentencing is a discretion of a trial court, there are limited instances in which this court may interfere with it.

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This has long been settled by the decisions of this court and the Supreme Court. In Ogalo S/o Owoura vs Republic [1954] 21 EACA 270, the East African Court of Appeal held at page 270 thus:

"The principles upon which an appellate court will act in exercising its jurisdiction to review sentences are firmly established. The Court does not alter a sentence on the mere ground that if the members of the Court had been trying the appellant they might have passed a somewhat different sentence and it will not ordinarily interfere with the discretion exercised by a trial Judge unless: , as was said in James v. Rex [1950] J, 18 EACA 147, "it is evident that the Judge has acted upon some wrong principle or overlooked some material factor" To this, we would also add a third criterion, namely, that the sentence is manifestly excessive in view of the circumstances of the case. R V Shershewsky [1912] C. CA 28 T. LR 364."

Further, in the case of Kyalimpa Edward v. Uganda - S. C. Crim. $11.$ Appeal No. 10 of 1995, the Supreme Court, re-stated the fact that the primary responsibility for sentencing is on the trial Court and made clarification on the principles governing interference with a sentence by the appellate court. The Supreme Court held as follows:

"An appropriate sentence is a matter for the discretion of the 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 court is satisfied that the sentence imposed by the trial judge was manifestly so excessive as to amount to an injustice: Ogalo s/o Owoura vs R. (1954) 21 E. A. C. A. 270, R. vs Mohamedali Jamal (1948) 15 E. A. C. A. 126."

$\mathsf{S}$

However, it should be noted that although crimes are not identical or $12.$ committed under exactly the same circumstances, courts must always, in exercising their discretion during sentencing maintain consistency or uniformity in sentencing in cases of a similar nature. In Mbunya Godfrey v. Uganda - S. C. Crim Appeal No. 4 of 2011, the Supreme Court held thus:

> "We are alive to the fact that no two crimes are identical. However, we should try as much as possible to have consistency in sentencing."

The instant case is of murder. It is necessary to seek guidance from $13.$ precedents of sentences imposed in murder cases of a similar nature. In the case of Atuku Margret Opii v. Uganda, Court of Appeal Criminal Appeal No. 123 of 2008, where the Appellant had killed a neigbhour's 12 year old daughter by drowning, this Court reduced the sentence from death to 20 years imprisonment. In the case of **Uwihayimaana Molly v. Uganda:** Court of Appeal Criminal No. 103 of 2009 in which the Appellant had murdered her husband by hacking, this court reduced her sentence from death to 30 years' imprisonment. In Kisutu Mujerdin alias Mpata v. Uganda, Court of Appeal Criminal Appeal No. 128 of 2010, this court upheld a sentence of 30 years imprisonment for murder. In Kyaterekera George William v. Uganda, Court of Appeal Criminal Appeal No. 0113 of 2010, this court similarly upheld a sentence of 30 years for murder.

In the instant case, it was noted in both aggravation and mitigation that $14.$ the Appellant was a first offender. He was 20 years old and still a young man at the time of the commission of the offence.

$c$

There is evidence on court record that the Appellant was remorseful. He felt pain for the deceased's family and sought for forgiveness from them. Nevertheless, he committed a grave offence whose maximum sentence is the death penalty. The Appellant being a young man, there is need for him to be given the opportunity to reform and be rehabilitated to the community after his sentence since he could still be productive to his community and society at large.

Mindful of the legal principles and considering the precedented $15.$ decisions of this court and the Supreme Court on sentencing in cases of a similar nature, we find a sentence of 50 years' imprisonment, in the circumstances of this case, to be harsh and manifestly excessive.

### Ground 2

The learned trial Judge erred in law and fact when he failed to account and deduct the Appellant's period spent on remand from the sentence imposed on him.

### **The Appellant's submissions**

The Appellant's counsel contended on the $2^{nd}$ ground of the appeal $16.$ that the trial Judge erred in law and fact when he failed to account for the Appellant's entire period spent on remand. That much as he mentioned that the period the Appellant spent on remand was 4 years' imprisonment, the time the Appellant spent on remand was 4 years, 4 months and 20 days rather than 4 years only. That the Appellant was arrested and put into lawful custody on 1^st November, 2011 and sentenced on 20^th April, 2016

$\overline{7}$ $17.$ That the trial Judge did not only err to consider the whole period spent by the Appellant in lawful custody which was 4 years, 4 months and 20 days but also failed to deduct it from the sentence imposed. Counsel prayed that this honourable court deducts the Appellant's remand period of 4 years, 4 months and 20 days from the sentence given. Counsel further prayed that this honourable court allows this appeal against sentence of 50 years and substitutes it with a lesser one.

### **The Respondent's submissions**

The Respondent's counsel contended on the 2^nd ground of this appeal 18. that time spent in lawful custody means time spent on remand. That this means that a person who is arrested can only be said to be in lawful custody if he or she spends 48 hours in police custody or he is remanded by court of law in a prison facility pending his or her trial. That any other time spent in custody is unlawful and it cannot be taken into account during sentencing.

19. The Respondent's counsel argued that the trial Judge was not bound to arithmetically deduct the period spent on remand since the position of the law at that time did not require him to do so. That all he needed to do was to consider or take into account the time spent on remand. Counsel cited the cases of Nashimolo Pual Kibolo v. Uganda SCCA No. 46 of 2017, and Abele Asuman v. Uganda, SCCA No. 66 of 2016.

20. The Respondent's counsel stated that the decision being challenged in the instant case was delivered on the 20^th of April, 2016. That was a year before the Supreme Court gave its decision in the case of Rwabugande Moses v. Uganda, which was delivered on the 3^rd March, 2017. That the learned trial Judge was therefore not required to follow the position of the law that did not exist at that time.

Counsel submitted that the 2^nd ground of the appeal lacks merit and prayed that it be dismissed. The Respondent's counsel concluded that this entire appeal is devoid of merit and prayed that it should be dismissed

# **Court's analysis**

The 2^nd ground of the appeal is brought is premised on the fundamental $21.$ right of a convict guaranteed by the Constitution of the Republic of Uganda, 1995. Article 2 of the Constitution of the Republic of Uganda, 1995 provides thus:

"1. This Constitution is the supreme law of Uganda and shall have binding force on all authorities and persons throughout Uganda.

2. If any other law or any custom is inconsistent with any of the provisions of this Constitution, the Constitution shall prevail, and that other law or custom shall, to the extent of the inconsistency, be void."

22. Article 23 (8) of the Constitution of the Republic of Uganda, mandates the trial court to consider the period a convict has spent in lawful custody during trial in passing a sentence. It provides as follows:

"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. (Emphasis ours)"

Similarly, Guideline 15 of the Constitution (Sentencing Guidelines for $23.$ Courts of Judicature) (Practice) Directions, 2013, states that:

"(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 the above provisions of the law, the word "shall" is used and it is $24.$ construed as mandatory. Therefore, it is mandatory and not discretional for a sentencing court to deduct the period a convict has spent on remand from the final sentence passed by the court. Therefore, a sentence arrived at without taking into consideration the period spent on remand becomes illegal for failure to comply with a mandatory constitutional provision.

We have already noted in the resolution of the 1^st ground of the appeal $25$ that this court is alive to the principle that the appellate court will not interfere with a sentence imposed by a trial court which has exercised its discretion on sentences unless the exercise of the discretion is such that the trial court ignores to consider an important matter or circumstances which ought to be considered when passing the sentence.

In this court's judgment, the consideration of the remand period $26.$ necessitates subtracting the period spent in lawful custody before completion of the trial, from the sentence passed by the sentencing court which is normally the trial court. In the case of Rwabugande v. Uganda (Criminal Appeal 25 of 2014) [2017] UGSC 8 (3 March 2017), the Supreme Court held that:

"It is our view that the taking into account of the period spent on remand by a court is necessarily arithmetical. This is because the period is known with certainty and precision; consideration of the remand period should therefore necessarily mean reducing or subtracting that period

from the final sentence. That period spent in lawful custody prior to the trial must be specifically credited to an accused."

In the instant case, the sentence of the trial court reads as follows: $27.$

## "SENTENCE

I have considered the mitigation as part a cross by the convict. This is a very serious offence where the deceased lost his life apparently for no said reason. The convict does not said all that repent. Murders of this nature are nowadays very common in this Jurisdiction and a land and clear message made to be sounded to deter would be offences from committing further offences.

He has been on remand for 4 years.

I shall sentence him to a period of fifty (50) years' imprisonment starting from today.

## Right of Appeal explained.

**Duncan Gaswaga**

Judge

## $20/4/16"$

Clearly from the above excerpt, there is no indication that the 4 years $\overline{28}$ noted by the trial Judge that the Appellant spent in lawful custody was deducted from the custodial sentence of 50 years' imprisonment. The plain reading of the excerpt appears to suggest in our view that the period spent in lawful custody before conviction was to be deducted from the 50 years but it was not deducted.

In our judgment, the learned trial Judge erred in failing to arithmetically 29. take into account the period the Appellant spent on remand in passing the final sentence. This makes the sentence illegal.

Section 11 of the Judicature Act, Cap 16 provides as follows: 30.

"For the purpose of hearing and determining an appeal, the Court of Appeal shall have all the powers, authority and jurisdiction vested under any written law in the court from the exercise of original jurisdiction of which the appeal originally emanated."

Having decided that the sentence of 50 years' imprisonment was $31.$ manifestly harsh and excessive as well as illegal for failure to cater for the remand period, we now invoke the provision of section 11 of the Judicature Act to impose a fresh sentence on the Appellant.

$32.$ In consideration of both the aggravating and mitigating factors already on record, the period spent on remand as well as the circumstances of this case, it is our conclusion that a sentence of 30 years' imprisonment is appropriate. Upon reduction of the period the Appellant spent in lawful custody of 4 years, 4 months and 20 days during his trial in line with Article 23 (8) of the Constitution of the Republic of Uganda, 1995, the Appellant will serve a sentence of imprisonment for 25 years, 7 months and 10 days effective from the date of his conviction, that is, 19^th April, 2016. We so order.

Dated at Mbarara this $21$ st

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$\frac{1}{1}$ day of **May**, 2025.

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$\mathcal{L}_{\mathcal{L}}$

Hon. Justice Moses Kazibwe Kawumi **JUSTICE OF APPEAL.**


Hon. Lady Justice Florence Nakachwa **JUSTICE OF APPEAL.**

Medit

Hon. Lady Justice Cornelia Sabiiti Kakooza **JUSTICE OF APPEAL.**