[2025] UGCA 159

## THE REPUBLIC OF UGANDA

# IN THE COURT OF APPEAL OF UGANDA HOLDEN AT MBARARA

## CRIMINAL APPEAL NO.0096 OF 2020

### **KAVUMA TONNY**

### **APPELLANT**

RESPONDENT

## **VERSUS**

#### **UGANDA** $10$

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(Appeal from the judgment of the High Court at Bushenyi (Gaswaga, J) delivered on 11^th January 2018 in Criminal Session Case No.024 of 2017)

(Coram: Kazibwe Kawumi, Nakachwa, Kakooza Sabiiti, JJA)

## JUDGMENT OF THE COURT

The appellant was on his own plea of guilt convicted for Murder contrary to sections 188 and 189 of the Penal Code Act. He was also convicted for Aggravated Robbery contrary to sections 285 and 286 (2) of the Penal Code Act still on his own plea of guilt. The trial Court sentenced him to 13 years' and 5 months' imprisonment on each count on 11^th January 2018. The Court ordered for the sentences to run concurrently.

#### **Background** $25$

The facts upon which the appellant was convicted are that on 6/4/2017, Alex Twinomugisha who owned a motorcycle Registration No. UEM 600V dropped off his brother and his wife at a music concert in Ishaka town at around 10.00pm and promised to pick them later. He did not return to pick them and his body was found along Ishaka-Nkanga Road with head injuries the following day. The neck was tied with a scarf and a belt. The motorcycle was not at the scene where the body was found.

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The body was taken for a post mortem examination and the cause of $\overline{5}$ death was established to have been intracranial hypertension due to blunt force injury on the skull. The appellant with others were arrested from Kasese town with the stolen motorcycle upon which they were charged with the counts of Murder and Aggravated Robbery to which the appellant pleaded guilty.

Dissatisfied with the sentence imposed by the trial court, the Appellant lodged an Appeal on the following grounds;

1. The learned trial Judge erred in law and fact when he convicted the appellant for the offence of murder basing on a plea of guilty recorded without following the legally established procedure of recording a plea of guilty hence occasioning a miscarriage of iustice.

- 2. The learned trial Judge erred in law and fact when he convicted the 20 appellant for the offence of Aggravated Robbery recorded without following the legally established procedure of recording a plea of guilty hence occasioning a miscarriage of justice. - 3. The learned trial Judge erred in law and fact when he convicted the appellant to a harsh and excessive sentence yet he pleaded 25 guilty hence occasioning a miscarriage of justice.

## **Representation**

Mr. Masereka Chan Geoffrey represented the appellant on state brief while Ms. Akasa Aminah, a Senior State Attorney appeared for the Respondent holding brief for Ms. Ddamba Ramullah, a State Attorney in the Office of the Director Public Prosecutions.

The court validated the Notice of Appeal filed out of time. Counsel filed 35 submissions which, with the leave of court were adopted as their final arguments in the determination of the appeal.

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# **Submissions by Counsel for the Appellant**

It was submitted on the first two grounds of appeal that the trial Court did not follow the law governing the taking of pleas as set out in sections 60 and 63 of the Trial on Indictments Act. Counsel further submitted that the guidelines laid out in the case of Adan v Republic (1973) EA 345 on the recording of a plea of guilty were not followed by the trial court.

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Counsel particularly pointed out that the appellant's plea was not recorded in the exact words he used and the record does not indicate that the ingredients of the two offences were explained to him. The trial court was further faulted for having convicted the appellant on each of the counts in total disregard of the procedure which requires each offence and ingredients to be explained to the accused separately before he is required to plead to each count.

It was further submitted that the record does not indicate that the appellant pleaded guilty specifically to each ingredient of the two $20$ offences he was charged with. The Court was referred to Muhereza Wilbroad v Uganda [2022] UGCA 92 in which a sentence imposed by the High Court was set aside on account of the fact that a material ingredient of the offence was not supported by the facts.

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The attention of the Court was further drawn to Juma Nkunyingi & Another V Uganda [2015] UGCA 2017 where the Court quashed a conviction entered when the facts of the case had not been presented to the appellant. Counsel further cited Tomasi Mufumu v R (1959) EA 625 in which the court emphasized that a trial judge has to satisfy himself $30$ that an unequivocal plea is recorded and that the accused had understood the elements which constitute the offence for which he is convicted.

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Relating to the third ground of appeal, it was submitted that the $\mathsf{S}$ conviction and sentence were not only illegal but also harsh and excessive. Counsel cited Livingstone Kakooza v Uganda [1994] UGSC 17 for the proposition that a sentence imposed by the trial court can be set aside where a material factor was overlooked.

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## Submissions by Counsel for the Respondent

The respondent contended that the appellant pleaded guilty to the two counts in the Indictment and admitted to the facts read out by the State Attorney as correct. The facts brought out the name of the deceased, how he was murdered by strangulation and where the body was dumped. The facts also brought the discovery of the motorcycle with the appellant and others in Kasese town which he also admitted to as correct.

It was submitted that the plea taking procedure followed the $20$ requirements of section 63 of the Trial on Indictments Act and the guidelines to the taking of a plea of guilty set out in Adan v Republic (supra). The court was referred to Haji Eliasa Namunju & Others V **Uganda, SCCA No.49 Of 2018** for the proposition that substantive justice should override anomalies discovered in the process of plea taking. $25$

On the third ground of appeal, it was submitted that the Court should not interfere with the discretion of the trial Judge since the sentence imposed was not manifestly harsh or so low as to cause an injustice. It was further submitted that the court did not ignore any material factors while sentencing the appellant. The Court was urged to uphold both the conviction and the sentence.

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#### **Consideration of the Appeal** $\mathsf{S}$

As a first appellate court, it is our duty to re-appraise all evidence that was adduced before the trial court and come to our own conclusions on the facts and the law while making allowance for the fact that we neither saw nor heard the witnesses testify. See Kifamunte Henry v Uganda [1998] UGSC 20.

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## Grounds of Appeal Nos 1 & 2

The complaint in the two grounds of appeal as the court perceived them, is that, the appellant's plea to each of the two counts was not recorded in the exact words he used. It is also contended that the record does not indicate that the ingredients of the offences in each count were explained to the appellant.

The third limb of the complaint is that the counts in the indictment were not separately read to the appellant to enable him plead to each and to $20$ the respective ingredients of each. In other words, the trial court is faulted for omnibus plea taking. We here below set out the court proceedings reflecting the plea taking procedure from which the appeal arises;

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$11/1/2018$ Mr. Tusubira for the accused. Accused present Mr. Oundo for the state **Court:** Indictment read to the accused. **Count 1:** I am quilty (PG) **Count 11**: I am quilty (PG)

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### **Brief Facts:-**

The deceased, Alex Twinomugisha was a boda boda rider at Ishaka. He owned motorcycle UEM 600 V. Bajaj Boxer type and red in colour. He often worked during day and night.

On 6/2/2017 the deceased left his brother Musinguzi Edgar and his wife Aisha at a music concert at Ishaka at 10.00pm promising to come back for them later. He never returned. At 2.00 am they walked home. On the *following day, 7/2/17 the deceased was discovered 200* meters along Ishaka-Nkanga Road. The body had head injuries and the neck was tied with a scuff and a belt. The body was taken to Kampala International Hospital. It was found that the death was due to intracranial hypertension due to a blunt force injury on the skull. Police arrested the accused (A4) with others in Kasese with the stolen motorcycle and he was arraighed. He was medically examined and found to be of normal mental status.

**Accused:** Facts admitted as correct

**Court:** You are therefore convicted on your own plea of guilty and on each one of the two counts as charged........................"

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The trial Judge thereafter proceeded to hear submissions in aggravation and mitigation of the sentence subsequent to which he sentenced the appellant to 14 years on each count. The Court deducted seven months spent on remand from each count leaving the appellant to serve 13 years and 5 months on each count with the sentences to run concurrently.

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$cSS$ The appellant relies on sections 60 of the Trial and Indictments Act $\mathsf{S}$ together with the Guidelines in Adan v R (1973) EA 345 for the contention that the plea taking was irregular and he should be acquitted on that account.

## Section 61 of the Trial on Indictments Act [CAP 25] states as follows ;- $10$

"61. Pleading to indictment

The accused person to be tried before the High Court shall be placed at the bar unfettered, unless the court shall cause otherwise to order, and the indictment shall be read over to him or her by the chief registrar or other officer of the court, and explained if need be by that officer or interpreted by the interpreter of the court, and the accused person shall be required to plead instantly to the indictment, unless, where the accused person is entitled to service of a copy of the indictment, he or she shall object to the want of such service, and the court shall find that he or she has not been duly served with a copy."

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The catch words in the above provision are the unfettered appearance of an accused at the bar and the reading of the indictment to him/her only to be explained if necessary before he/she is required to take plea. The appellant's complaint is not that he was in any way fettered from appearing before the Judge or that he sought an explanation/ interpretation of the indictment which was denied.

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$CMP$

The appellant's complaint is that the court did not record the actual $\mathsf{S}$ words used by the appellant in plea taking. A Judge or Magistrate taking a plea is required to as nearly as possible record the response to the words in the words used by the accused. This is a complaint steeped in speculation since the actual words used by the appellant in response to the plea are not known or stated in the submissions. $10$

We fail to find a basis for a finding that the trial court did not use the actual responses made by the appellant in answering to the charges read to him by the court. Even then, that would not invalidate the plea taken by the court since an unequivocal answer was given by the appellant to each of the two counts.

In Nivonzima Richard v Uganda, SCCA No.33/2021 the court while discussing the import of section 60 of the Trial on Indictments Act [now section 61 of the revised edition Chapter 25] made the following $20$ pertinent observation;

> "Section 60 being silent on the effect of non-recording of a plea verbatim or that the proceedings shall be illegal or a nullity, the intention of the legislature was not to make it mandatory but directory......the fact that the legislature did not make it mandatory was because they had in mind the bigger interest of administering justice with undue regard to technicalities."

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It would follow from the above decision that the complaint about the failure by the court to use the actual words used by the appellant in answering to the charges is misconceived. It is directory and not mandatory. The unequivocal plea by the appellant cannot be set aside on the basis of the failure by the court to record the actual words used by an accused during plea taking.

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CNI

Counsel for the appellant complained about the alleged omnibus reading $\overline{5}$ of the charges. This averment is not supported by the record of the trial court. Each charge was separately read to the appellant. The record does not however reflect that the ingredients of each offence were explained to the appellant which we find to be the crux of the two grounds of appeal. This will be addressed later in the judgment. 10

Counsel for the appellant relied on Adan v Republic(supra) which gave guidelines on the manner in which a plea of guilty should be recorded. The Court stated that;

- 1. The charge and all the essential ingredients of the offence should be explained to the accused in his language or in a language he understands; - 2. The accused own words should be recorded and if they are an admission a plea of guilty should be recorded; - 3. The Prosecution should then immediately state the facts and the accused should be given an opportunity to dispute or explain the facts or to add any relevant facts; - 25

- 4. If the accused does not agree with the facts or raises any question of his guilt his reply must be recorded and a change of plea entered; - 5. If there is no change of plea, a conviction should be recorded.

What we deem to be the pertinent question is whether the alleged failure by the trial court to explain the ingredients of the two offences occasioned a miscarriage of justice to the appellant?

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- We are of the view that the appellant was not in any way prejudiced $\mathsf{S}$ since he was aware of the nature of the charges he was answering to and had the assistance of an Advocate in court who must have guided him through the process before he agreed to the guilty plea. - The appellant did not complain about poor or ineffective representation $10$ by his Advocate during the plea taking proceedings which would probably lead to an inference that he had no explanation about or was misled by the Advocate about the effect of the plea he was about to take. The appellant did not claim that he was innocent but mistakenly pleaded guilty on account of his lack of knowledge about the ingredients of the $15$ two offences in the Indictment.

We further note that the truth of the facts of the case, which were quite detailed was admitted to by the appellant. Through the facts he learnt of the death of the named person, the date on which he was killed, the 20 manner of death, the stealing/robbing of his motorcycle and its discovery with the appellant among other persons.

The facts were detailed enough to alert any accused in the dock about what faced him. The appellant who had legal representation could not 25 have unknowingly admitted to the truth of such facts if indeed he was not a party to what happened.

It is the finding of the court that the failure by the Court to explain the ingredients of each of the two offences the appellant was charged with 30 occasioned no miscarriage of justice to him.

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- In Matata Bwambale & Others v Uganda [2023] UGCA 326 this court $\mathsf{S}$ was faced with an appeal raising a complaint that ingredients of the offence were not explained by the trial court. The Court acknowledged that it was the position and invoked section 139 of the Trial on Indictments Act. It was held that; - - "We acknowledge the fact that the trial court omitted to read the ingredients of the offence to the appellant. However, for this court to interfere with the decision, it must be demonstrated that this omission led to a failure of justice as provided for under section 139 of the Trial on Indictments Act."

We are bound by the above decision which addressed issues similar to what was raised by the appellant in the two grounds of appeal. The complaint raised is a mere technicality that cannot be entertained in view of Article 126 (2) (e) of the Constitution. The first and second grounds of appeal are dismissed for want of merit.

## **Ground of Appeal No.3**

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The learned trial Judge erred in law and fact when he convicted the appellant to a harsh and excessive sentence yet he pleaded guilty hence occasioning a miscarriage of justice.

The Constitution (Sentencing Guidelines for Courts of Judicature) (Practice) Directions, 2013 in part 1 of the 3^rd schedule provide for a starting point of 35 years and a sentencing range of 30 years up to death when determining sentences in Murder cases. The sentence of 13 years' and 5 months' imprisonment imposed by the trial court was therefore within the sentencing range for the offences of Murder and Aggravated Robbery the appellant was indicted for.

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It is also an established principle that an appellate court will not interfere $\mathsf{S}$ with a sentence imposed by the trial court which has exercised its discretion on the sentence unless the exercise of the discretion resulted into the sentence imposed to be manifestly excessive or too low as to cause a miscarriage of justice.

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We find no grounds to interfere with the sentence of 13 years and 5 months imprisonment imposed by the trial court. The third ground of appeal is accordingly dismissed for want of merit. The appeal is dismissed and the appellant should continue to serve the sentence imposed by the trial Judge.

Signed, delivered and dated at Mbarara this ........ day of May 2025.

**Moses Kazibwe Kawumi Justice of Appeal**

Florence Nakachwa

**Justice of Appeal**

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Cornelia Sabiiti Kakooza **Justice of Appeal**

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