[2025] UGCA 121

#### THE REPUBLIC OF UGANDA

## IN THE COURT OF APPEAL OF UGANDA HOLDEN AT **MASAKA**

(*Coram: Hellen Obura, JA, Christopher Gashirabake, JA, Eva K.* Luswata, JA)

CRIMINAL APPEAL NO. 0425 OF 2015

**BETWEEN**

KIKULWE KALORI ::::::::::::::::::::::::::::::::::::

#### **AND**

UGANDA::::::::::::::::::::::::::::::::::: 15

> (An appeal from the Judgment of the High Court sitting at Masaka in Criminal Session Case No.23 of 2012 by Hon. Lady Justice Margaret C. Oguli Oumo delivered on 10^th February, 2015)

#### **JUDGMENT OF THE COURT**

#### **Introduction**

1] The Appellant was charged with aggravated defilement contrary to Section 129(3), (4) (b) of the Penal Code Act Cap 128. The Appellant was indicted, convicted and sentenced to 68 years' imprisonment. It was stated in the indictment that Kikulwe Kalori during the month of January 2011 at Kibutamo village in Rakai District, being HIV positive, performed a sexual act with a child we shall identify as NO, a person under the age of 18.

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# s Brief facts

- 2l The brief facts of the case as discerned from the record are that the Appellant was a friend of NO's father and their neighbour in Kibutamu Parish, Lwankoni Sub County in Rakai District. Sometime during February 2011, the Appellant met NO going to school. He forced her into a bushy area and had forceful sexual intercourse with her. As a result, NO conceived but feared to report the defilement to her parents. However, several months later, NO's teachers reported to her parents their suspicions that she was pregnant. NO's father took her to Kata-fali Clinic where NO's pregnancy was confirmed. A subsequent medical examination at the Kalisizo Government Hospital confirmed that NO was at the material time aged 16 years, had an old raptured hymen and was 30 weeks pregnant. At some point, the Appellant admitted his participation in the defilement and offered to settle the matter with NO's father. However, those negotiations fell through and during July 2011, the Appellant was arrested and charged with aggravated defilement. He was at the same time subjected to a medical examination and confirmed to be HIV positive. - 3] The Appellant denied the charge but was found guilty, convicted and sentenced as afore stated. He was aggrieved with the decision and on 24/0212025, his counsel lodged an appeal contesting his conviction and the sentence. When the matter was called for hearing on 18th March 2025, the Appellant was represented by Ezra Mulindwa on State brief, while Mr. Noah Kunya a Chief State of the Office of the Director of Public Persecutions Attorney

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- ⁵ (ODPP), appeared for the Respondent. We allowed Mr. Mulindwa's prayer to file an amended memorandum of appeal, and we made an additional order allowing him to appeal against sentence only. - 4l The amended Memorandum of Appeal had one ground only ¹⁰ stating thus:

That the learned tial Judge erred in lanu and fact when slw imposed a sentence of sirtg-eight (68) gears'impisonment on the Appellant whichis manifestly excessiue and harsh.

Both parties filed written submissions in respect of that ground of appeal which were adopted with leave of Court. We in addition considered authorities they filed, and more sourced by the Court.

# zo Appellant's Submissions

5] By way of introduction, Appellant's counsel first referred to the duty of the 1"t Appellate Court which is to conduct a fresh and exhaustive evaluation of all evidence presented during the trial to make its own determination and the principle would apply even where the appeal hinges on sentence a-lone. Counsel cited Pandya v R [1957] EA 336 and Kifamunte Henry vs Uganda, SC Criminal Appeal No. 1O of 1997 in that regard.

6] Counsel submitted that the learned trial Judge misapplied the principles governing the award of a sentence in offences of a similar nature and as a result, imposed a harsh and excessive sentence of 68 years' imprisonment upon the Appellant which far exceeded the punishments usually imposed and/ or confirmed by

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- this Court in aggravated defilement cases. He cited **Rwabugande** $\mathsf{S}$ Moses vs Uganda, SC Criminal Appeal No. 25 of 2014, and Kyewalabye Bernard vs Uganda, SC Criminal Appeal No. 143 **of 2001** where court discussed circumstances under which an Appellate Court can interfere with the discretion of the sentencing judge to include cases where the sentence is illegal, where the 10 sentence is harsh and manifestly excessive, failure to exercise discretion, failure to take into account a material factor, and where an error in principle was made. - 7] Counsel submitted that when passing the sentence of 68 year's imprisonment, the trial Judge only took into consideration the 15 aggravating factors which in counsel's view was an error in principle and resulted into passing a harsh and excessive sentence. For guidance, counsel referred to **Ederema Tomass vs** Uganda, CA Criminal Appeal No. 55 of 2015 where this Court held that it is incumbent on the trial Judge to weigh the 20 aggravating and mitigating factors before passing sentence. - 8] In addition, counsel referred to Principle No.6 of the Constitution (Sentencing Guidelines for Courts of Judicature) (Practice) Directions, 2013 (Sentencing Guidelines) which provides a framework for uniformity in sentencing. He submitted that the sentence was manifestly harsh since no criminal record for the Appellant was presented during allocutus thus a presumption that he was a first time offender. Additionally, that at only 32 years, the Appellant was still of youthful age and capable of reform.

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⁵ 9l To emphasize the principle of uniformity, counsel cited some cases in regard to the same offence. He cited for example, Ederema Tomass vs Uganda (supra) in which this Court agreed to reduce a sentence of 25 years'to 18 years' imprisonment for an Appellant with HIV after considering that he may have infected his victim. Also that of Rwakibale Patrick vs Uganda, (2018) UGCA 61, where the Appellant at 42 years and a first offender, succeeded to have his sentence reduced from 32 years to 18 years' imprisonment for the defilement of a three-year-old girl. He argued that similarly, the Appellant's case should be viewed without differentiation for given the circumstances of this case, a sentence of 68 years was manifestly excessive. Finally, that the court should uphold the principle of stare decisis and reduce the sentence to a proposed term of 15 years' imprisonment. 10 15

### Respondent's submissions

10] Respondent's counsel strongly opposed the appeal. He submitted that sentencing is a matter for the discretion of the sentencing Judge. Therefore, the appellate Court will not interfere with the sentence imposed by the trial Court unless the sentence is illegal, based on wrong principles or manifestly harsh and excessive. For guidance, counsel referred to Kyalimpa Edward vs Uganda, Criminal Appeal No. 1O of 1995. Counsel submitted further that the offence for which the Appellant was found guilty carries a maximum sentence of death yet he was sentenced to 68 year's imprisonment for defiling a 16-year-old girl whose parents were his neighbdFs. That in fact, the trial Judge gave sound reasons for during 25 30 that sentence, being that the Appellant showed no e o 20

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- ⁵ his trial and demonstrated reckless behavior, for knowing he was HIV positive, he defiled his victim. - 11]Building upon the trial Judge's sentencing order, counsel added that the Appellant demonstrated beastly conduct which resulted into an unforgettable and regrettable experience by his victim who ended up being impregnated by a man who was HIV positive. In his view, it is safer for the Appellant to be incarcerated for a long time, and that the sentence should serve the purpose of deterring others intending to commit the same offence. - 12] Respondent's counsel equally discussed the principle of uniformity and consistency by drawing our attention to decisions of the Supreme Court and this Court that showed that in comparison, the sentence imposed here, was lenient and not excessive as alleged. He cited for example, Kaserebanyi James vs Uganda, Criminal Appeal No. 1O of 2OL4, in which the Supreme Court upheld a sentence of life imprisonment for aggravated defilement where a father deiiled his daughter. 15 20 - 13] In conclusion, counsel prayed that the conviction and sentence of the trial Court be upheld.

### Analvsis and decision ofthe court

¹⁴¹The contest in this appeal is that a sentence of 68 years' imprisonment was manifestly excessive and harsh, especially when the court disregarded the facts presented in mitigation. Respondent's counsel disagreed. He considered that for an offence which attracts the death sentence, the sentence was appropriate ee with the submission 25 ³⁰ and imposed with sound reasons. We agr

6 A-Wy A,^l-< - ⁵ by both counsel, that the sentencing function must always remain in the discretion of the Judge who conducted the trial, for they observed the witnesses and evaluated the evidence. Even so, each case presents its own facts upon which a Judge exercises that discretion. See Karisa Moses vs Uganda, SC Criminal Appeal No. 23 of 2016. The principles guiding the appellate Court when considering any appeal on the severity or legality of a sentence are well settled. Our powers to intervene are quite limited. We may interfere only in cases where it is shown that' - ¹ The sentence is illegal, or - 11. The sentence is manifestly harsh or excessive, or - iii. Where there has been failure to exercise discretion, or - iv. Where there was failure to take into account a material factor, or - Where arr error in principle was made. - See Ogalo S/O Owoura v R (1954)21 E. A. CA. 27O, Kyalimpa Edward vs Uganda, SC Criminal Appeal No. 10 of 1995, Kamya Johnson Wavamuno vs Uganda, SC Criminal Appeal No. 16 of 2OOO and Kiwalabye vs Uganda, SC Criminal Appeal No. 143 of 2OO1. - 25 30 15] During the allocution proceedings conducted on 22na February, 2015, the following were presented as aggravating factors. That the convict who was HIV positive defiled a young girl that he ought to have shown protection, leaving her with lifelong psychological and physical disturbance. That such people deserve severe punishment to protect the girls in society. Conversely, it was submitted as mitigation that the convict who ¹ e s guilt

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and understood the gravity of the offence, had at the time of his conviction been on remand for 3 years and 4 months which ought to be considered. The trial Judge, issued the following sentencing order.

## SENTENCE AND REASONS

"The conuict uas charged uith Aggregated Defilement C/ s 129(3)(4)(b) of the Penal Code Act. The particulars of the offence are tha[ Kikulute Kaloi around the monthof February, 2011 at Kibutamo uillage in Rakai Distict being HIV positiue performed a Sexual Act utith NO a child belou the age of 18 years. The accused pleaded not guiltg and the prosecution produced fiue witnesses to proue ils case. I haue heard the submissions of counsel for prosecution and the Accused's counsel in mitigation. The offence uith uthich the accused is conuicted carries a ma-rimum sentence of death on conuiction. Tlrc accused was not remorseful throughout the pleadings. The accused was reckless tuell knouing he is a HIV uictim. Such behauior should be condemned in the society. Court slnuld charge and conuicted (sic!) him accordinglg. Court therefore sentences him to 68 gears' impisonment, taking into account the gears he hc,s spent on remand 3 gears and 4 month,s."

Margaret C. Ogult Oumo JT'DGE 1O/2/202s.

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16] Our understanding of Section 108 of the Trial on Indictments Act, $\mathsf{S}$ is that any person liable to serve a sentence of imprisonment for life, may mitigate their sentence to a shorter term. There is also ample authority to the effect that every sentencing Judge should maintain a fair balance between the mitigation and aggravating factors presented before sentencing. See for example: Magala 10 Ramathan vs Uganda, SC Criminal Appeal No. 1 of 2014. In this case, the Judge appeared to have given more prominence to what was presented by the prosecution. There is merit then in the argument that he was largely influenced by the aggravating factors when deciding on a sentence of 68 years' imprisonment. A similar 15 case in point is this Court's decision in **Ndyabalema Fulugensio** vs Uganda, CA Criminal Appeal No. 126 of 2016, a case involving defilement of a minor. It was held that;

"There is a high threshold to be met for an appellate" *court to intervene with the sentence handed down by a trial Judge on grounds of it beings manifestly excessive. Sentencing is not a mechanical process but a matter of judicial discretion therefore perfect uniformity is hardly* possible. The key word is *"manifestly excessive"*. An appellate court will only interfere where the sentence is manifestly excessive, in the circumstances. In the circumstances where the learned trial Judge appeared to only consider aggravating factors, a sentence of 30 years may be considered manifestly excessive." [Emphasis added].

17] In his submissions, Appellant's counsel moved the Court to uphold the principle of *stare decisis* by reducing the sentence in line with previous cases that he provided. It is a wrong assumption that a sentencing or appellate court should consider previous

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sentences as precedent. They can only do so for guidance. It was for example held in Ainobushobozi Venancio vs Uganda, CA Criminal Appeal No. 242 of 2014, that although past decisions with regard to sentences do not have the authority of precedents, they do provide a range which ought to be considered for purposes of achieving some measure of uniformity between like cases. The consistency principle is in Paragraph 6(c) of the Constitution (Sentencing Guidelines for Courts of Judicature) (Practice) (Directions) (Sentencing Guidelines), which enjoins Courts to practice the principle of consistency while passing a sentence to a convict. To explain the importance of that principle, the Supreme Court in Aharikundira Yustina vs Uganda, Criminal Appeal No. **27 of 2015** as follows:

> "... it is the court while dealing with appeals regarding sentencing to ensure consistency with cases that have similar facts. Consistency is a vital principle of $a$ sentencing regime. It is deeply rooted in the rule of law and requires that laws be applied with equality and *without unjustifiable differentiation.*"

18] We have considered some of the authorities presented by both counsel in their submissions. Also, in **Bachwa Benon vs Uganda**, 25 CA Criminal Appeal No. 869 of 2014, this Court upheld a sentence of life imprisonment for a 38-year-old Appellant who defiled a 10-year-old girl and infected her with HIV. The Supreme Court upheld a similar sentence in **Banyo Abdul vs Uganda, SC Criminal Appeal No. 07 of 2011**, again considering that the Appellant was HIV positive. Yet in **Weitire Asanasio vs Uganda**, [2010] UGCA 47 (16^th November 2010), this Court considered it

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- ⁵ as extremely barbaric for a 63-year-o1d Appellant who deliled two young girls in turn, by tying one to a tree as he ravaged the other. The Court considered that his advanced age and a serious health condition would not exonerate him from such cruel behavior. The sentence of 12 years (on each count) was considered too lenient, quashed and substituted with one of life imprisonment. In Mbazira Joseph Paul vs Uganda, CA Criminal Appeal No. O27O of 2011 & 74 of 2O2L, this Court substituted a sentence for life, with a sentence of 28 years and 4 months. 10 - 19] Guided by the above authorities, we are persuaded that the custom of this Court and the Supreme Court has been to reserve sentence for aggravated defilement between 18 years' imprisonment and life imprisonment. There would be exceptional circumstances that would compel a Court to sentence outside the range. 15 - 20] Considering the facts here and based on the strength of previous sentences, we Iind that the sentence of 68 years' imprisonment was manifestly harsh and excessive in the circumstances. We accordingly set it aside. We accordingly set it aside. We now invoke the provisions of Section 11 of the Judicature Act which grants this Court the same powers as the trial Court to impose a sentence on the Appellant that we find more appropriate in the circumstances. 20 25 - 211 We have taken note of the aggravating and mitigating factors above, the law cited and the principle of consistency as was elaborated above. Summing up all those factors, we consider a sentence of 33 years and 4 months'imprisonm ppropriate in t

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- the circumstances. We are enjoined under Article 23(8) of the $\mathsf{S}$ **Constitution** to take into account the period of 3 years and 4 months the Appellant spent on remand. We deduct it from the term imposed. - $10$

Accordingly the Appellant shall serve a term of 30 years' $22$ imprisonment which he will serve from the date of conviction, 10^th February, 2015.

We so order.

Dated this .................................... 15 **HELLEN ABULU OBURA JUSTICE OF APPEAL** 20 **CHRISTOPHER GASHIRABAKE JUSTICE OF APPEAL** 25 30 EVA K. LUSWATA **JUSTICE OF APPEAL**