[2022] UGCA 347

Delivered 2022

#### THE REPUBLIC OF UGANDA IN THE COURT OF APPEAL OF UGANDA AT FORTPORTAL CRIMINAL APPEAL NO. 032 OF 2013

#### KAYIMA NDAKIZIMANA ::::::::::::::::::::::::::::::::::: $\mathsf{S}$ VERSUS

UGANDA ::::::::::::::::::::::::::::::::::: (Arising from the decision of the High Court at Kiboga by Faith Mwondha, J, in High Court Criminal Case No.05 of 2013, dated the $10^th$ day of April $2013)$

#### CORAM: Hon. Mr. Justice Richard Buteera, DCJ Hon. Lady Justice Irene Mulyagonja, JA Hon. Lady Justice Eva K. Luswata, JA

#### **Introduction**

#### JUDGMENT OF THE COURT

The appellant, Kayima Ndakizimana, was convicted of the offence of 20 Murder c/ss 188 and 189 of the Penal Code Act, and sentenced to imprisonment for 20 years.

#### **Brief facts**

25 On the 27^th day of June 2007 in Kiselesi Nasuuna village in Kiboga District, the appellant caused the death of one Muhoozi Emmanuel. The two were at a bar when a quarrel ensued. The appellant who had a knife stabbed the deceased on the chest and ran away. The deceased bled profusely and died. Investigations were conducted, the appellant was arrested and charged with Murder. At the trial, he pleaded guilty, was convicted on his own plea 30 of guilty and sentenced to 20 years' imprisonment. He now appeals against the sentence.

#### **Grounds of Appeal**

- 1. That the learned trial Judge erred in law in sentencing the appellant to an illegal sentence of 20 years. - 2. Alternatively, but without prejudice to the above, that the learned trial Judge erred in law in sentencing the appellants to a harsh and manifestly excessive sentence of 20 years in the circumstances.

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The appellant thus prayed that:

- a) The appeal be allowed; - b) The sentence of imprisonment of 20 years be set aside and be substituted with such lesser sentence as the Court may deem fit. - 5

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#### Representation

At the hearing of the Appeal, the appellant was represented by Mr. Cosma A. Kateeba, on state brief, while the respondent was represented by Ms. Immaculate Angutoko, Chief State Attorney. Both counsel applied to court and were granted permission to adopt their written submissions and it is these that Court shall consider, together with the lower court record and the relevant laws and authorities for the resolution of the Appeal.

#### Submissions

# Ground I

15 Case for the appellant

> Counsel for the appellant moved under Section 132(l)(b) of the Trial on Indictments Act to seek leave to appeal against the sentence only. The leave was granted.

- 20 Counsel submitted that it was clear from the record that in arriving at the sentence of 20 years' imprisonment, the learned trial Judge did not take into consideration the period of six years spent by the appellant on remand. In his opinion, that contravened Article 23 (8) of the Constitution of Uganda. He stated that the appellant had been on remand since 2007, having been arrested three months after the commission of the offence. - 25 He cited Rwabugande Moses v Uganda: Supreme Court Criminal Appeal No, 25 of 2014, where Court held that a sentence arrived at without taking into consideration the period spent on remand is illegal for failure to comply with a mandatory constitutional provision. He contended that in this case, the sentence was illegal for failure to comply with Article 23 (8) of the Constitution. 30

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He submitted that it was not clear which remand period was considered and whether that remand period was deducted or not. He invited this Court to set aside that illegal sentence and invoke the provisions of Section 1l of the Judicature Act which vests this Court with the power of the trial court to determine an appropriate sentence.

Counsel observed that it may be argued that the appellant herein was convicted before the Rwabugande case (supra). However, he contended that the Constitution was already in existence and it had to be complied with. He cited the case of Okucu loel & Anor v Uganda; Court of Appeal Criminal Appeal No. 12O of 2O2O where the appellants had been

sentenced on July 7, 2010, in the following terms: 10

> "Both convict(s) are said to be first offenders... They have been on remand for 3 years now...

> Considering all the factors of this case and taking into account the period spent on remand, I pronounce sentences as follows:. .. "

He submitted that on appeal to this court, the court held at page l5 that the trial Judge in this case did not comply with Article 2 3 (8) of the Constitution while passing custodial sentence and, therefore, the sentences imposed on the appellant in that case were a nullity. He contended that the decision equally applied to the instant case where the appellant was convicted in terms that did not specifically state that the trial Judge had 'taken into account the period spent on remand'. He thus invited this Court to find and hold that the sentence of 20 years' imprisonment imposed on the appellant was illegal and should accordingly be set aside. 20 25

## Case for the respondent

Counsel for the respondent cited Kiwalabye Bernard v Uganda;. SCCA No. 143 of 2OOl and contended that it is settled law that sentencing is ^a discretion of a trial Judge and an appellate court will only interfere with ^a

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sentence imposed by the trial court if it is evident that it acted on a wrong principle or overlooked some material fact or if the sentence is manifestly harsh and excessive in view of the circumstances of the case.

Counsel submitted that both parties submitted in allocutus and the trial Judge took into consideration the mitigating factors, the aggravating factors and the period spent on remand. She further submitted that the appellant was sentenced on 10/04/2013, way before the decision in Rwabugande Moses v Uganda (supra) which requires arithmetic deduction of the period spent on remand. She stated that the sentence was passed

under the Kizito Senkula v Uganda; SCCA No. 24 of 2O11 regime wherein the Supreme Court justices held that 'taking into account' did not mean an arithmetical exercise. Further that according to the principle of precedent, this Court and the Courts below had to follow the law in place at the time. 10

She contended that the learned trial Judge in this case clearly indicated that she had taken into account the period spent on remand by the appellant and as such, the sentence was legal. 15

#### Ground 2

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## Case for the appellant

- Counsel for the appellant submitted that in the event that court found that the appellant was properly sentenced, it should find that the sentence was harsh and excessive in the circumstances. He submitted that in deciding what the appropriate sentence should be, guidance should be sought from the current sentencing ranges in relation to similar offences for consistency while bearing in mind that no two cases are ever the same. 20 - He referred ro Kia Erin v Uganda: Court of Appeal Criminal Appeal No. 172 of 2013 where the appellant had been convicted of murder of a threeyear-old child and after a full trial was sentenced to death. That following the abolition of the mandatory death sentence in June 2005, he was sentenced to life imprisonment. He stated that on appeal to this court, the 25

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sentence of life imprisonment was set aside and substituted with one of l8 years' imprisonment.

He cited Epuat Richard v Uganda; Coult of Appeal Criminal Appeal No. 199 of 2O17 cired in Ekia Erin (supra) where a sentence of 30 years' s imprisonment was set aside and substituted with one of l5 years. He also cited Ariko Francis v Uganda; Court of Appeal Criminal Appeal No. 241 of 2011 where a 17 years' imprisonment sentence for murder was confirmed. He stated that these were all cases which had gone through ^a full trial.

He contended that in this case, the trial Judge ignored the mitigating factors, to wit; the appellant pleaded guilty and saved court's time and argued that a plea of guilty necessarily calls for leniency. He added that the appellant was a first time offender who was remorseful and was married with two children. That he was an adult of youthful age and could 10

easily reform and be useful to society if given an opportunity. He thus submitted that in view of the above precedents, a less severe sentence was called for in view of the range of punishments given in like cases. 15

He invited this Court to invoke its powers under Section I I of the Judicature Act to set aside the sentence for being harsh and excessive, impose its own sentence taking into account the 6 years the appellant had

spent on remand by subtracting them from whatever term of imprisonment court deemed fit. 20

He stated that taking into account the precedents and the circumstances of this case, a sentence of 10 years would be appropriate. From that, the ⁶ years spent on remand should be deducted leaving a sentence of 4 years to run from the date of conviction in 2 0 I 3, which would in eff ect mearr that the appellant has served his term and should, therefore, be set free immediately. 25

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Case for the respondent

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Counsel submitted that the offence of murder attracts a maximum penalty of death under Section 189 of the PCA. She referred to Part IV of the Constitution (Sentencing Guidelines for Courts of Judicature) (Practice) (Directions) 2013 which sets the starting and maximum ranges in sentencing for the offence of Murder as 35 years and death respectively. It was her submission that the sentence of 20 years' imprisonment was neither harsh nor manifestly excessive.

She further contended that the sentence of 20 years was within the range of sentences imposed by this Court in recent years. She cited Kazarwa Henry & others v Uganda; SCCA No. 17 of 2O15 in which the 2"" appellant pleaded guilty to Murder and was sentenced to life imprisonment. This Court upheld the sentence of life imprisonment and the sentence was later confirmed by the Supreme Court. ln Sebuliba Siraji v Uganda; Criminal 10

Appeal No. 319 of 2O09 in which the appellant attacked the deceased and cut him with a panga on his head, neck and hand thereby causing his death. He was convicted on his own plea of guilty and sentenced to life imprisonment. This Court upheld the sentence of life imprisonment. 15

She also referred to Aria Angello v Uganda; CACA No. 439 of 2O15 in which the appellant was convicted on his own plea of guilty on four counts of Murder under a plea bargain agreement and sentenced to 36 years and 8 months' imprisonment on each count. This Court found no reason to interfere with the sentence. 20

Counsel thus invited this Court not to interfere with the discretion of the learned trial Judge as no illegality was occasioned and all material factors were duly considered in imposing the sentence. She prayed that this Appeal is disallowed and the conviction and sentence upheld. 25

6lPa r.1 " Court's consideration

## Ground I

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We have carefully considered the submissions of counsel for both parties. Counsel for the appellant contends that the sentence passed by the learned

5 trial Judge violated Article 2 3 (8) of the Constitution since it did not take into consideration the period of six years spent by the appellant on remand. To resolve this, we will look at the record of appeal on sentencing. The learned trial Judge stated thus:

'The Convict is a first offender who pleaded guilty instantly.

He has been on remand for close to 6 years. This offence is rampant thouqh the convict is remorseful and repentant. The way the death was executed was very painful.

The maximum senten(e for this offence is death.

Taking into account all the above. He is sentenced to 20 years imprisonment.

#### Right of Appeal explained.'

We note that this sentence was passed on l0'n April 2013. This was before the decision in Rwabugande Moses (supra) that required trial courts to mathematically deduct the period accused had spent on remand, before

- passing sentence. At the time the sentence in this case was passed, the guiding authority was as stated in the case of Kizito Senkula v Uganda (supra) that'taking into account'did not mean an arithmetical exercise. As far as the record shows, the learned trial Judge referred to the 6 years the appellant had spent on remand and it was one of the factors that she took into account while pronouncing the sentence. 20 - 25

We would, therefore, have no basis to find that the sentence passed by the learned trial Judge contravened Article 23 (8) of the Constitution. This ground fails.

#### Ground 2

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In the alternative, counsel for the appellant contended that the 20 years' imprisonment sentence was manifestly harsh and excessive. He implored this Court to invoke its powers under Section l l of the Judicature Act to

5 impose a lesser sentence. ln Kiwalabye Bernard v Uganda, Criminal Appeal No.143 of 2OOI (unreported), the Supreme Court gave guidelines for when the appellate court may exercise its delicate discretion of tampering with a trial court's sentencing. Court had this to say:

> "The appellate court is not to interfere with the sentence imposed by a trial court where that trial court has exercised its discretion on sentence, unless the exercise of that discretion is such that it results in the sentence imposed to be manifestly excessive or so low as to amount to ^a miscarriage of justice, or where the trial court ignores to consider an important matter or circumstance which ought to be considered while passing the sentence or where the sentence imposed is wrong in principle."

In this case, it is discernible from the record of appeal that the learned trial Judge considered the mitigating and aggravating facts before meting ^a sentence of 20 years' imprisonment. We will look at some of the sentences passed in cases where an offence similar to the one in this case was handled. ln Kia Erin v Uganda (supra), this Court reduced the sentence of life imprisonment to 18 years' imprisonment. Ariko Francis v Uganda; Court of Appeal Criminal Appeal No. 241 of 2011, a 17 years' imprisonment sentence for murder was confirmed. ln Kazarwa Henry & others v Uganda; SCCA No. 17 of 2O1 5, this Court upheld the sentence of life imprisonment and the sentence was later confirmed by the Supreme Court. 20

From the above authorities it is evident that the 20 years' imprisonment sentence is actually within the sentencing range, and if anything lenient given that the maximum penalty for the offence with which the appellant 30

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was convicted is death. There is no basis for contending that it is manifestly harsh and excessive.

In the circumstances, we find no reason to interfere with the learned trial Judge's discretion. We accordingly uphold the 20 years' imprisonment sentence and dismiss the appeal for lack of merit.

Dated at Fort Portal this tF\$ day of ^N cv ²⁰²²

^c ard Buteera a Deputy Chief Justice

Irene Mulyagonja 20 Justi of Appeal

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Ev K. Luswata Justice of ^eal