[2025] UGCA 38

# THE REPUBLIC OF UGANDA IN THE COURT OF APPEAL OF UGANDA AT KAMPALA CRIMINAL APPEAL NO. 112 of 2OL4

I(AWEESA ABDUL ................. APPILLANT

## VERSUS

uGANDA.... ...... RESPONDENT (An appeal arising from the decision of Hon. Justice Elizabeth Ibanda Nahamya in the High Court of Uganda-Criminal Session Case No. 298 OF 2O11 Holden at Mpigi delivered on the 3ru day of April,2OL4l

CORAM: HON. JUSTICE RICHARD BUTEERA, DCJ HON. JUSTICE EVA K. LUSWATA, JA HON. JUSTICE OSCAR JOHN KIHIKA, JA

## JUDGEMENT OF COURT

## Introduction

[1] The appellant was indicted, tried and convicted of murder contrary to Sections 188 and 189 of the pena\_l Code Act and sentenced to 35 year's imprisonment.

## Background

[2] The brief facts as ascertained from the record are that the appellant was well known to the deceased, a one NAMYALO TEOpISTA, with

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whom he was co-habiting. On the 23.a day of October, 2OlO, at around 16:00hrs, the deceased was at Nagawa's bar in Kitwe, Kanoni Town Council taking beer. The appellant entered the same bar and started beating the deceased. During the a\_ltercation, the appellant accused the deceased of having an affair with one Musisi who happened to be in the same bar. After the fight, the appellant proceeded to Kanoni Police Station to report the case of assault. However, upon reaching the Police Station, he found that the deceased had, prior to his arrival, reported a case of assault same case against him. The appellant made his statement and then left the deceased behind.

[3] Before the deceased returned home, the children of the late prepared to go to sleep. The appellant however stopped them and told them to go and sleep in another room which was outside of the house. At about 23:00 Hrs the deceased returned home woke up the children and asked them for the keys to the house to enable her enter therein and sleep. When the deceased entered the house, a verbal fight ensued between her and the appellant. In the course of the verbal exchanges, the appellant picked an axe, which was under the bed, and hit the deceased on her forehead. She died instaltly. Upon realising that he had killed the deceased, the appellant immediately ran away and went into hiding, first in Butambala and later in Kyaggwe village at the lake. It was not until 23.d December 201O when he was arrested by the police acting on a tip off by a traditional healer.

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[a] The appellant was indicted for the offence of murder, to which he pleaded guilty and was sentenced to 35 years'imprisonment. Being dissatisfied, the appellant appealed to this court against sentence only.

## [5] Ground of Appeal

The Learned Trial Judge erred in law and fact when he imposed on the appellant a sentence of 35 yearts imprisonment which is harsh and manifestly excessive given the circumstances of the case.

## t6l Appearances

At the hearing of the appeal, Mr. Mohammed Mba\_lire appeared for the appellant on State brief, while Ms. Immaculate Angutuko Chief State Attorney appeared for the respondent. The appellant sought leave under Section 132 (1) (b) of the Trial on Indictment Act (TIA) to appeal against sentence only. The leave was accordingly granted by this Court.

l7l Both Counsel relied on written submissions which have been considered by this court in the resolution of this appeal.

#### Appellant's Submissions

t8l Counsel for the appellant submitted that the appellant was sentenced to 35 years' imprisonment in spite of the fact that he had pleaded guilty. Counsel contended that the 35 years handed out to him by the learned trial Judge was manifestly harsh and excessive in the circumstalces. It was Counsel's further submission that the courts in sentencing a convict ought to be guided by the principle of consistency. Counsel relied on the case

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of; Aharikunda Yustina v Uganda, Criminal Appeal No.27 of 2015. In which it was held;

K...it is the dutg of this coutt, uthlle dealing wlth appeals regarding sentenclng to ensure consistencg utlth cq.ses thqt ltaue slmilar facts. Consistencg is a uital prlnciple in a sentencing reglme'

[9] It was his prayer that this court reviews the sentence and reduce it to conform to uniformity, consistency and leniency. He also prayed that the period that the appellant had spent on remand be deducted.

## Submission for the respondent

- [10] In reply, Counsel for the respondent argued that the learned trial Judge considered the mitigating and aggravating factors before passing sentence. Counsel submitted that an appellate court can only interfere with a sentence where the trial court exercises its discretion wrongly. - [1 1] Counsel submitted that the appellant was convicted and sentenced to 35 years' imprisonment and that the 35 years were justified given the circumstances of this case. Counsel relied on the authorities of; Kaddu Kavulu Lawrence v Uganda, Supreme Court Criminal Appeal No. 72 of 2()18; I(arisa Moses v Uganda, Supreme Court Criminal Appeal No. 23 of 2016 and Makonzi Patrick v Uganda, Court of Appeal Criminal Appeal No. 218 of 2O1O in support of his contention and prayed that the Court confirm the sentence passed by the trial Judge.

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## Consideration by Court

[12] We are guided by the principles laid down by the Supreme Court in Kamya Johnson Wavamunno v Uganda SCCA No. 16 of 2OOO where it was held that;

o... it is well settled. thst q cout/-, of appeal ulfl not lnterfere totth the exerclse of dlscretion unless tlure hos been a fallure to tc,ke into account q. materi;o,l consideratlon, or q.n error ln prlnclple ura,s made.,,

See a-lso Sekandi Hassan v Uganda SCCA No.2S of 2O19, Livingstone Kakooza v Uganda SCCA No. L7 of ¹⁹⁹⁹ [unreported] and JacksonZita v Uganda, SCCA No. 19 of 1995.

[13] Counsel for the appellant contended that the sentence passed was harsh and excessive. In her sentencing the learned trial Jud.ge stated as follows;

> "The State Attorney, Ms. Namala Amina, has gone to length to state the aggrauating factors to wit, Degree of injury seious neck injuries, cntshed brain, the deceased LUas pregnant, lefi Aoung children, her being their bread uinner. The ueaponused was an axe to cause death to a trulnerable uictim. She was drunk and pregnant. I note other aggrauating factors. Offence taas committed in presence of children and he ran awag afier committing the act in an efforl to conceal himself.

> In paragraph 20(p), the death has had an impact on the children. They lost a bread winner and a mother who cannot be replaced. Also the community was affected bg a sudden death of the

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deceased. I note the pain and anguish the child.ren haue undergone. The wounds are bnial as per the photos exhibited. in court (P. Dxh.4). the conuict brutally murdered the deceased., the brain tissue was exposed. Mttrder attracts death penaltg. I haue also considered the mitigating factors: fi.rst time offend"er, readilg pleaded guiltg but utithout remorsefulness consid.eing the fact tLwt he was smiling as he mentioned the d"eceased being a conatbine another mitigating factor is that according to charge and caution which has been exhibited as p. Exh.2, the d.eceased first took an axe and tied to hit him uhich prompted him to retaliate in (s-d) by hitting her on the head. Howeuer, looking at the uounds inJlicted wherebg the brain lissue oozed, out, he exceeded the reasonable force in the circumstances, he was youthful and is stil/ so. At the time he utas 33 gears old. he had. a familg i.e. children and a mother tahom he uould. look afi.er from his sweat as a businessman. The prosecutor has praged. for life impisonment. The eldest child of the d"eceased., Sgluest Saaka, on behalf of his siblings has also asked for life imprisonment.

The learned Defence Counsel, Mr. Richard" Lwanga, has aduocated for 1 5 gears' impisonment and. the conuict has praged. for loyears. I haue considered the circumstances of this case, ¹ find that the aggrauating foctors outtueigh the mitigating factors. A life was suddenlg ertinguished get so many people mainlg children depended on it. Wlwteuer the anger and jealousness, the conuict should haue simplg moued out of the d.eceased.'s home but to kill her in her otan home is an aggrauating factor. That,s

UL w'b( whg there is a lau-t against domestic uiolence and euen murder. Ideallg, gou deserue to die. Howeuer, it is not imperatiue or mandatory for meto mete out a deathpenaltg and since you haue some mitigating factors though weak; I uill spare the d.eath penaltg. Houteuer, the pain, anguish and deterrent sentence. I haue taken into account the peiod of (4) gears spent on remand I am guided by part 1 Third Schedule and the deterrent pinciple of sentencing. I hereby sentence the gou to a term of impisonment of 3 5 (Thirty -Fiue) years.,

- [14] After putting into consideration, the mitigating and aggravating factors, the Learned Trial Judge arrived at a finding that the aggravating factors outweighed the mitigating factors and she sentenced the appellant to 35 years'imprisonment. - [15] According to the third schedule of the Sentencing guidelines, the sentencing range for the offence of murder is 30 years to death sentence a\_fter considering the mitigating and aggravating factors. In the matter before us, the Learned Trial Judge sentenced the appellant to a term of 35 years'imprisonment, which is lower than the maximum penalty of death. - [16] In our view, the learned triat Judge considered both the mitigating and aggravating factors and passed a sentence consistent with previous decisions of this court and the Supreme Court. See; Kaddu Kavulu Lawrence v Uganda, Supreme Court Criminal Appeal No. 72 of 2018; Karisa Moses v Uganda, Supreme Court Criminal Appeal No. 5O of2O15.

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- [17] Without proof that the learned trial Judge acted on a wrong principle or ignored some material factor, this court would. have no lawful reason to interfere with the decision of the learned sentencing Judge. - [18] counsel for the appellant submitted that the learned trial Judge did not deduct the period spent on remand. In her sentencing notes, the learned trial Judge stated as follows;

"...... I haue taken into account the peiod of (4) gears spent on remand I am guided bg part 1 Third Schedule and the d.eterrent pinciple of sentencing. I herebg sentence the gou to a term of impis onment of 3 5 (Thirtg - Fiu e) g e ars. . . .. .,'

- [19] The sentencing notes do indicate that the trial Judge did take into account the period spent on remand although she did not deduct the same from the sentence. - [20] when sentencing, courts are mandated to consider the period spent on remand. Article 23(8) of the Constitution of the Republic of Uganda 1995, as amended stipulates that,

nWhere a person ls conulcted qnd sentenced. to a tenn of imprlsonment for an offence, ang period. he or sl:.e spend.s tn lautfal custod,g ln respect of the o;ffence beJore tlw completlon of hts or her trtal sho,ll be taken lnto q.ccount ln lmposlng the tenn of tmprlsonment.o

Principle 15 of the Sentencing Guidelines provides that.

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\*(7) The court shs.ll take lnto qccount ang perlod. spent on th.e sentence consld.ered approprlate afier o,llfactors ltaue been tc.ken lnto account. D

[2 1] In the case of; Rwabugande Moses v Uganda Supreme Court Criminal Appeal No. 25 OF 2OL4, it was held; oThat d. sentence o.rrlaed at ultlrp,ut putting lnto consld.eratlon tlme spent on remand. was lllegal for fallure to comptg utlth mandatory constlhttlonal proulslons. Court futther emphqslzed that the conslderatlon ought ta be a mqthemo,tlcal deductlon consid.etlng the fact that the time spent on remand ls spectficallg knoutn,,,

- l22l As stated before, in the instant appeal before us, the learned tria\_l Judge did not deduct the period of 4 years that the appellant had spent on remand. However, it has to be pointed out that the decision of the trial Judge was delivered on 3.d April2ol4. This was well before the decision in the Rwabugande case (supra), which was delivered on 3'd March 2017. - [23] As such, the sentencing court was, under the principle of stare decisis, bound by the then prevailing interpretation of Article 23(g) of the constitution by the Supreme court. The wording of the impugned sentence indicates that the trial Judge complied with the then prevailing authorities of the Supreme court for example, IKizito Senkula vs. Uganda, Supreme Court Criminal Appeal No. 24 of 2OO1 (unreported) where the Supreme Court held:

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oAs we understq.nd the proulsions of Atticle 2g (B) of the Constitutlon, theg mean that uthen a trial Court imposes a term of imprisonment as sentence on the convicted person the Coutt should to,ke lnto a.ccount tlle period uthich the person spent in remand prior to his/her conulction. Taking into q.ccount does not mean an o.rithmetical exercise.r,

[24] When the Supreme Court changed its position in March 2017 through the Rwabugande Case (supra), and took the route of arithmetical deduction, then the new position became binding authority on the Supreme Court itself and a,11 the lower Courts effective }y'rarch 2017. It did not have retrospective application. This position was indeed reflected in the case of Nashimolo Paul Kibolo vs Uganda, Supreme Court Criminal Appeal No. 46 of 2OL7, where the Supreme Court held thus:

## u... the d.eclsion (Rwabugande) was deliaered on Srd March 2017. In accordance utith the prtnctple of precedent, this Court. and. the Courts belout haue to follout the position ofthe laut from that date hence forth."

[25] It is on account of the above that we therefore cannot fault the trial Judge for having adopted the sentencing style which complied with the sentencing regime as guided by the Supreme Court at the time. This ground of appeal consequently fails.

In the result this appeal stands dismissed.

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We so order.

... day of ................................... Delivered and dated this ...

. . . . . . . . . . . . . . . . . . .

HON. MR. JUSTICE RICHARD BUTEERA

Deputy Chief Justice

HON. LADY JUSTICE EVA LUSWATA

**Justice of Appeal**

...

HON. MR JUSTICE OSCAR JOHN KIHIKA

Justice of Appeal

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