[2023] UGCA 290

# THE REPUBLIC OF UGANDA

# IN THE COURT OF APPEAL OF UGANDA AT MBALE

(Coram: B Cheborion, JA, C. Gashirabake, JA, O. Kihika, JA.)

### CRIMINAL APPEAL NO. 0016 OF 2019

(Arising from Criminal Session No. HCT-00-CR-CS- 149/2016)

#### **BETWEEN**

# **KODET MARIKO....................................**

# AND

### **UGANDA...................................**

(Appeal from the Judgment of the High Court of Uganda Holden at Jinja, by Oyuk Ojok Anthony, J. delivered on $04^{th}$ January 2018) 15

#### **JUDGMENT OF COURT**

#### **Introduction**

- 1.] The appellant was charged with the offence of rape contrary to sections 123 and 124 of the Penal Code Act. - 20

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2.] That on the 4^th day of January 2016 at Kapelbyong Town Board in Amuria District, the appellant had unlawful carnal knowledge of A. B. The Appellant and one Egwapu Nicholas were jointly arrested and subsequently charged with rape contrary to Sections. 123 & 124 of the Penal Code Act Cap 120 as amended upon which a plea of not guilty was entered to that effect. The Respondent (prosecution) presented 3 witnesses to wit: PW1 (Doctor Egona), PW2 (Eyosu Olujin) and PW3 Akol Betty) upon which they adduced evidence to prove beyond reasonable doubt that the appellant committed the above captioned offence being corroborated by PEX 1 (Medical report examining the victim) and PEX2 (Medical report $1$ | Page

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- examining the accused). The respondent having established a prima facie case against the appellant, the appellant opted to give sworn evidence upon which he raised the defense of alibi in reply to the allegations put forward by the respondent. The trial Court found the appellant guilty as charged and he was sentenced to 60 years' imprisonment. - 3.] The appellant being aggrieved with the decision of the High Court lodged 10 an appeal in this Court. The appeal is premised on six grounds set out in the Memorandum of Appeal as follows; - 1. That the learned trial Judge erred in law and fact when he denied $\frac{1}{2}$ the appellant an opportunity to cross examine prosecution *witnesses hence occasioning a substantial miscarriage of justice.* - 2. The learned trial Judge erred in law and fact when he considered and relied on unsworn testimony of PW3 to convict the appellant hence occasioning a substantial miscarriage of Justice. - 3. That the learned trial Judge misdirected himself on the procedure governing the tendering of PEX1 and PEX 2 hence occasioning to substantial miscarriage of justice. - 4. That the learned trial Judge erred in law and fact when he relied on the admitted documents without a memorandum of agreed documents filed on court record to convict the appellant hence occasioning a miscarriage of justice. - 5. That the learned trial Judge erred in law and fact when he failed to follow proper procedure for summing up the law and evidence to the assessors hence occasioning a miscarriage of justice. - 6. *That the learned trial Judge erred in law and fact when he imposed* a harsh severe and excessive sentence of 60 years to the appellant without considering mitigating factors hence occasioning to miscarriage of justice.

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# s ILcprcsentation

4.] At the hearing of the appeal, the appellant was represented by Mr. Obedo Deogratuis. The respondent was represented by Ms. Happiness Ainebyoona State Attomey.

### Ground one

That the lcarned trial Judge crred in law and fact when hc dcnied thc appellant an opportunity to cross examine prosecution witnesses hencc occasioning a substantial miscarriage of justicc. 10

### And

That the learncd Trial Judge erred in law and in fact when considcred and relied on unsworn tcstimony of PW3 to convict thc appcllant hcnce occasioning to substantial miscarriage of justice. 15

# Submissions by counsel for the Arlpellant.

5.] Counsel submitted that Section 136(2) oi the Evidencc Act, defines cross examination as the examination of a witness by the adverse party. Further, Section 72 of the Trial on Indictments Act, is to the effect that thc witnesses called for prosecution shall be subject to cross cxamination by thc accused or his advocate and re-examination by the advocate for prosecution. Counsel cited the case of Sula Kato V. Uganda 120011 UGSC 3, where the Supreme Court noted;

I,'urlhermore, in Uganda, all trials o.f cuses are suhjec'l to the provisions o.f tlrlicle 28 o/ the Constitution. 'l'his article is ubout.fair hearing.'l'he virlue of a.fair hearing is that a party in a cau:;e ,should he in a posilion to conlrovert his or her opponenl either by conlrury

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⁵ evidence or hy croet-examining a wilness who giyes evidence ogoinsl him to lesl the vracity 0J the witness who tcslilies.

- 6.1 Counsel submitted that nothing on the Court record indicates that prosecution witnesses inclusive of the Victim (PW3) were ever cross examined. To the contrary, the state cross examined the appellant (DWl ) upon giving his swom testimony under examination in ChieL Further, DW2 was cross examincd by the state upon testifoing under examination in Chief. - 7.1 The trial Judge did not indicate any justifiable reason in his judgment whatsoever for the deliberatc and wiltful denial of the appellant's constitutional right to cross examine the prosecution witnesses. - 8.f Considcring the case olSula Kato (Supra), counsel submitted that lailure to accord the appellant a right to cross examinc prosecution witnesses constituted a glaring error apparent on the face of the record thus prejudicing the appellant's constitutional right to a fair hearing. - 9.] Section 40(l ) of the I'rial on Indictments Act, is to the effect that every witness in a criminal cause or matter before the High Court shall be examined upon oath and the Court shall have full power and authority to administer the usual oath. Additionally, section l0 of the Oath's Act Cap 19, provides that no person shall be convicted or judgment given upon the uncorroborated evidence of a person who shall have given his or her evidence without oath or affirmation. - l0.l Counsel submitted that Section 73(2) (b) of the Trial on Indictments Act, vests only in the accused a right to make unswom statements, not prosccution witnesses. In thc casc of Sula Kato (Supra); M

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⁵ "it would appear thdt lhe misconception arises .from a view that because occused persons are nol cross exumined u,henever lhey make unsworn slalemenls in their deJbnse, u chikl u,ho does not lake odth should be trealed in lhe sdme way. Such a view is oblivious of the pea iar protection given lo an accused person in the .form of a right to make on unsworn statemenl with no liability to be cross examined. "

¹l.] Counsel argued that nothing on the Lower Court record indicated that PW3 was swom before testifying under examination in chief thus equating the said evidence to be unswom testimony whose weight attached is less as to reliability.

#### Submissions by counscl for thc rcspondenI 15

- l2.l Counsel for the respondent submitted that the evidence of PWI and PW2 was admitted in the preliminary hearing as agreed facts and evidencc in the presence ol'the prosccution and the accuscd. 'l'hesc wcre dccmed proved in accordance with Section 57 of the lrvidcnce Act and Section 66 (3) of the Trial on Indictments Act. - l3.l PW3 testified on l2ll1l2018 in the presencc of the appellant and his advocate. Counsel carried out due diligence and perused original court records. The handwritten record of proceedings of the trial Judge indicates that PW3 was cross examined on 30/1 l/2018 under oath. I-le invited this court to confirm the original court record. - 14.1 Counsel praycd that the two grounds fail.

# Consideration of Court

15.] This being a first appellate Court, it has a duty to re-evaluate thc evidence, weighing conflicting evidence, and reach its own conclusion on 5lPage

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⁵ thc evidence, bearing in mind that it did not see and hear the witnesses According to Rule 30(l)(a) of the Judicature (Court of Appeal Rulcs) Dircctions S. I l3-10.

# 16.] ln Kifamunle v Ugonda, Supreme Court Criminal Appeal No. l0 of 1997 court stated that:

Il/c agree thut on thc./irst uppcal,./i'om a conviction hy ct.luclge, lhe appellanl is entitleLl lo huve lhe appellole Court's own con.tideration aruJ views of the evidence a.t a whole ancl its own decision thercon. 'l'he./irst appellale court has a duly ut reviev, the cyidenca o/ lhc casc und lo reconsidar lhe muleriuls be/bre the trial .iudge.'l'he appellate Courl musl then make up ils ou,n mind nol disregarding the judgment oppealed./iom hul cdre.fully weighing and cons idering it.

See also the cascs of Pandyo v. R ll957l EA 336, Bogere Moses v. Uganda, SCCA No. I of 1997.

- 20 25 17.1 Ground one raises two issues, one on whether the prosecution witnesses were cross examined, PW3 inclusive, and whether she gave evidence on oath. In respect of PWI and PW2, the record shows that they tendered in PEXI which is Police Form No.3A., and PEX 2, Police Form 24A, as agreed documents. Once the documents are agreed upon, they do not have to be formally proved unless thc Court thinks there is a need for formal proof. (See section 66(3) of the Trial on Indictments Act.) lhis shall be handled in detail while addressing grounds 3 and 4. - 18.] Tuming to the issue of whether PW3 was swom in before she gave hcr evidence, the record of the trial Judge does not show whether or not PW3 was swom in bcfore he testified. 'lhe respondent counsel submitted that PW3 gave evidence on 30/l l/2018 underoath. The usual practice in all

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⁵ our courts is, of course, to show in the record that a witness has taken an oath before testifuing. In the record before us, there is no way we can determine that PW3 was swom in before she gave her evidence. When recording DWl, thc Court indicated that the appellant was going to give sworn evidence. This clarity was not evident for PW3. 'lhere is a possibility that PW3 took an oath, but there is also a possibility that she did not take it. If the latter is true then, it would appcar that the appellant was convicted on unsworn evidence contrary to section 40 (l) of the l'rial on Indictment Act and section l0 of the Oath Act Cap 19. If so this would be an elror apparent ofthe face ofthe record.

19.] The question lor this Court then is to establish if such an error occasioned the appellant a miscarriage ol justice as provided for under section 139 of the l'rial on Indictments Act. Thc 'Irial on Indictments Act gives room to Courts to uphold decisions even when there is an error during the proceedings. Section 139 ofthe Trial on Indictment Act provides that;

> " Subject to lhe provisions <tf any u,ritten law, no ./inding, senlence or order passed by the lligh L'ourt shall be reversed or ahered on appeal on accounl of an)) error. omission, irregularil), or misdirection in the summons, warrdnl, indiclmenl, order, .iudgment or other proceedinps before or during lhe trial unless lhe error, omis.sion, irregulority of misclircction has. occasioned a luilure (cmphasis ours)

20.1 To establish whether this crror occasioned a lailurc ofjusticc, we have to establish thc purpose of the oath. 1'he purpose oltaking an oath is to have thc witncss remindcd ol the duty of tetling thc truth. Upon giving the evidence on oath the witness is then cross examincd to interrogate the credibility of their evidence. The purpose of cross examination is to test the

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- credibility of the statements made during examination in chief. Cross examination attempts to destroy the testimony and credibility of the opponent's witness as justice is not served if a witness is unable to communicate credibility to the Court. The search for the truth is the ultimate and idealistic end of all litigated matters on trial. - 10

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$21.1$ The original handwritten record shows that whereas PW3 did not take oath, she was cross examined. The typed record missed the title head "*cross*" *examination*" and just recorded the proceedings which appear as examination in chief. The handwritten record shows on page 3 the proceedings as follows;

**Cross examination**

*Was Lomuria arrested?* PW3. Ran away How long have you stayed with Kodet? PW3. 2 years as neighbours *What is the name of your husband?* PW3: Ogone Peter Before this incident, had Kodet ever Proposed to you or molested you? PW3. No never Any grudges against Kodet?

PW3. Nothing

- $22.1$ Through cross examination the defence had an opportunity to discredit the credibility of PW3 as a witness. PW3's evidence was consistent and truthful. Cross examination prevented a miscarriage of justice from occasioning. We therefore find that failure to take the oath by PW 3 per se did not occasion a mischarge of justice. - $23.1$ Ground 1 and 2 fail.

8 | Page #### ⁵ Ground 3 and 4

The learned trial Judge misdirected himself on thc procedure governing the tendering of PEXI and PEX 2 hence occasioning to substantial miscarriage of justice. And;

That the learned trial Judge erred in law and fact when he relicd on the admitted documcnts without a memorandum of agrced documents filed on court record to convict the appellant hencc occasioning a miscarriage of justice.

24.1 [t was submitted for the appellant that the trial Judge misdirected himsclf on thc procedure goveming tendcring ol I']EXI and PEX2 hcnce occasioning a substantial miscarriage ofjustice. Counsel cited Section 66(2) of the 'trial on Indictmcnts Act Cap 23, which is to thc effbct that at the conclusion of a preliminary hearing held under this section, the court shall prepare a memorandum of thc matters agreed; and the memorandum shall be read over and cxplained to the accused in a language that he or she understands, signed by the accused and by his or her advocates and by the advocate olthc prosecution and then file it. Counsel cited Kamanzi Frcd v Uganda, CACA No. 38/1997, where the Court ol Appcal hcld inter alia that:

"lhe proper procedure ,should huve been to rccord oll the evidence lha! was sought lo be admilted as narraled by the state counsel .from his records. Afier recortling, il should he reod lo lhe accused who should then sign il logether vith his /her counsel and stule counsel. 'l'he rationale behind the above procedure wus to enable the accused lo know what sort ofevidence v,as being od,nitled u'ithout calling the witne:;s teho was the source of that evidence ". Abasi Kanyike v.

Uganda, (SCCA No. 34l1998).

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- ⁵ 25.1 Counscl submitted that in light of the authority, the import of section 66(2) is coachcd in mandatory terms and noncompliance of the same cannot be treated as a mere technicality but lundamentally affects the trial which may lead to the conviction to be quashed and sentence sct aside. - 26.1 The record of proceedings indicated that PWI tendered in PEXI and PW2 tendered in PEX2. Nothing on record indicates that the memorandum of agreed documents olPEXl and PIIX2 was signed by the accused or his advocate. According to counsel, failure to filc a memorandum of agreed documents caused a grave miscarriage ofjustice. Such a provision must be strictly complied with and any noncompliance with the same be resolved in favour of the appcllant. Thcse grounds should be allowed, counsel for the appcllant prayed.

### Submissions by counsel for the rcspondent

- 27.1 Counsel for the respondent submitted that no miscarriage of justice was occasioned to the appellant. 'l'he preliminary hearing was conducted in accordance with section 66 ol the Trial on lndictments Act. ]'he appellant was duly represented by counsel on state brief. Counsel submitted that justice should be delivered without undue regard to technicalities, in light of article I 26 (6) of the Constilution. - 28.] Section 57 ofthe Evidence Act provides that facts agreed by parties or their agents at the hearing need not be proved. In the case of Etoma Vs Uganda, Criminal Appeal, No. 404 of 2016 thc trial Judge was not faulted for relying on a medical report admitted in the preliminary hearing to prove grievous harm in a case of aggravated robbery.

Considcration of Court.

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⁵ 29.1 For ease of reference, the procedure for considering admitted documents stated under section 66 of the Trial on Indictments Act provides;

> ( I )Notreilhstdnding section 65, if an occused person who is legally represented pleads not guilty, lhe court shall as soon a.t is convenient hold a preliminary hearing in open courl in the presence qf the qccused and his or her advocate ond qf the advocate .for the prosecution lo consider such matlers as u,ill promote a .fair and expeditious trial.

> (2) At the conclusion ofa preliminary hearing held under this seclion, the court shall prepare a memorandum of the malters dgreed: and the memorarulum shall be read over and explained to lhe accusetl in a language that he or she underslands, signed by the accused and by his or her odvocate and by lhe advocate.for lhe prosecution, and lhen filed

> (3) Any.fact or document ddmitted or agreed (whether the .fact or document is mentioned in the summory of evidence or nol) in a memorandum under this section sholl be deemed to have heen duly proved; but if, during the course ofthe trial, the court is ofthe opinion thal the inleresls ofjustice so demand, the courl may direcl lhat any .facl or document admitled or agreed in a memorandum filed under lhis section be .formally proved.

30.1 Under subsection (l), once an appellant who is represented pleads not guilty, the Court conducts a preliminary hearing in open Court in the presence of the appellant and his advocate. According to the evidence on record, on 30/1 1/2018, the court conducted a preliminary hearing in the presence of Ms. Anyong Josephine for the State, Mr. Amodoi Samuel Moses for the appellant was also in court.

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- ⁵ 31.] At the conclusion of the preliminary hearing, it is required that the court should prepare a memorandum of matters agreed and the same must be read and explaincd to the accused in the language he understands. l'he trial Judgc rccorded the matters agrced upon on pages I and 2 of the proceedings. It is not in contention that the same was read back to the appellant in the language he understands, what is in contention by counsel for the appellant is the fact that the memorandum of agreed documents was neither signed by the appellant or his advocate nor filed in court. - 32.) We acknowledge that the trial Judge faultcd the procedure under subsection (2). IIe conducted thc preliminary hearing and wrote the agreed mattcrs, but did not draw a lbrmal memorandum ol'agreed mattcrs, neither was it signcd by thc appellant nor his advocatc. lt was not filed in Cour1. - 33.] 'Ihe proper procedure is that the court should prepare a memorandum of agreed matters. Thereafter read it to the appellant in the language he understands. It has to be signed by the appellant or his advocate. It has to be filed in Court as part of the record of proceedings. - 34.1 l-lowever, just like we resolved the first ground, for the appellate Court to set aside a conviction and a sentence on the ground of an error, there must be evidence of failure of justice due to that error as provided under section 139(Supra). [t is evident on record that both counsel and the appellant were available during the preliminary hearing, the documents were tendered in with no objection from counsel of the appellant or the appellant himself, this implied that they agreed to the documents and the content thereof. We are convinced that failure to prepare a formal

⁵ memorandum and the appellant or counsel not signing it did not occasion a miscarriage of justice.

35.1 Wc also notc that once a docurnent has bcen admittcd, thc contents thereof are considered proved unless, during the course of the trial, the Court is ol the opinion that it has to bc proved formally. In Etoma vs.

Uganda, (Supra), this Court held that;

A memorandum o.f agreed.facts speakr for itsel/, that is, the content.r o.f the documenls conceded lhereunder would amounl lo conceded .facts. l/ the lppellant wus not com./brtable v,ith the./indings in the medical report or the credenlials oJ thc author thereof, as is the conlenlion before us nov', he should never have conceded lo ils admission under thc memorandum o.f agreed .focls. Thal is the import of section 57 of the l,)vidence Act, u,hich obviales the need ./br ./irrther proo./'of a.fact that hos been admitled b1) conscnl o/ the parlies.

36.] With the above analysis we find that grounds 3 and 4 havc no merit.

³¹.) Grounds 3 and 4 thcrelbrc Iail.

### Ground 5

That the lcarncd Trial Judge crrcd in law and fact when hc failcd to follow propcr procedurc for summing up thc law and cvidence to thc assessors hcnce occasioning to miscarriagc of justice.

38.1 Counsel for the appellant submitted that Section 82(l) of the Trial on Indictments Act provides that "when the case on both sides is closed, the Judge shall sum up the law and evidence in the casc to the assessors and shall require each of the assessors to state his or her opinion orally and shall record each such opinion. 1"he judge shall take nole of his or hcr summing

# ⁵ up to the asscssors. Counsel cited Sam E,kolu Obote V. Uganda [ ¹⁹⁹⁵¹ UGSC 7 Suprcmc Court, wherc the court noted that,

"Sec 8l (l) tnow 5.82 (l)l of7'lA imposes a statutory obligation on the lridl Judge to sum up the law and the evidence in a case to lhe assessors. In lhe inslant case. there is no evidence on the record lhot the learned trial Judge summed up the case to the ussessors after the close oJ both sides. T'his in our view amounled lo afailure to comply with the obligatory requirement oJ Sec.8l(l) by the learned trial .ludge. h was a procedural error, whichwas,falal to the oppellanl's conviction. "

39.] 'l'his position was recently invoked by this Court in the Case of Agaba Lilian & Ors vcrsus Uganda CACA no.247 & 239 of 2017) [20191 where the Court ofAppeal rendered the trial nullity due to the trial Judge's failure, to sum up to assessors constituting ol an irregularity which is fatal and incurable under Scc. I 39 ol'l'lA. 15

40.] It was submitted for the appellant that considering the above authorities, failure to adopt the appropriate procedure for summing up the rcievant law and cvidence to the assessors by the trial Judge, rendered the trial nullity thus occasioning a substantial miscarriage of justice against the appcllant, and this Court ought to set aside the lower court's decision. 20

# 2s Submissions bv counscl for thc rcsrrondcnt

4l .) Counsel for the respondent submitted that the Record of Appeal shows that the trial Judge summed up the law and evidence for the assessors in the presencc of counsel I{obert for the appellant and the appellant. The assessors gavc their opinion lor the trial Judge to convict the appellant.

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- ⁵ Counsel invited this court to find that there was a summing up of law and evidence to the assessors by the trial Judge. - 42.] As regards the missing summing up notes, counsel invited this court to apply the law on missing rccords as set out by this court in the civil case of Ephraim Mwcsigwa Kamugwa vs. The Management Committec of NyamirimaPrimary School, Civil Appeal No. l0l of 2011:

"1'he lav, on missing record of proceedings has long been established. Whera a record of trial is incomplelc by reu.son oJ parls having been omilled or gone missing, or where lhe entire record goes missing, in such circumslances, lhe appellate court has lhe pou,er to either order a relrial or reconslruclion of'/hc record by the trial court.

43.1 He prayed that this ground fails

### Consideration of Court

44.1 Section 82(1) of the'l'rial on Indictments Act provides that; " 14/hen the case on both sides is closed, lhe judge shall sum up the law and the evidence in the case to lhe ussessors and shall require each of the a.rJes"ror.r lo state his or her opinion orally and shall record each such opinion. l-he judge shall toke a note of his or her summing up lo lhe assessors. "

- 45.1 According to the above provision it is a proccdural requirement that the trial Judge sums up the law and the evidence for the asscssors. 'l'he record shows that the case was summed up for the assessors. - 46.1 The manner in which summing up should be done was addressed by this Court in Tindyebwa Emmanucl & 2others vs. Uganda, Criminal

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# ⁵ Appeal No.396 of 2017, it cited Simbwa Paul vs. Uganda; CACA No.23 of 2012, wherc this Court notcd that:

"il is a goocl and desiroble prqctice lhat the subslance of lhe summing up notes to the assessors appeors in the record oJ proceedings. lt is lhe only u'ay an appeal Courl can tell u,hether lhe summing up was properly done. We are however sutisJied thot lhis assential step was underlaken hy lhe lriol Judge and that Jbilure to Jile lhe notes on record u,as not Jad lo lhe conviction. "

- 47.) In Simbwa Paul (supra),, this Court held that failure to file notes on record was not fatal to the conviction of the appellant. The record shows that the assessors gave their opinion, after considering the fact that PW3 was a single identifying witness. 'l'he assessors also analyzed PW3's evidence and came to the conclusion that even when there were contradictions, the same could be ignored because they were minor. Having assesscd thc lcgal issues raised during the hearing the assessors came to the conclusion that the appellant was guilty as charged. 1'he question, then before this Court is whether failure to file summing up notes occasioned ^a miscarriagc ol'justice against the appellant to justify a retrial. - 48.] It has been held by this Court that wherc thcre is evidence of sumrning of the law and the evidence for the assessors, even in the absence of the summing up notes, the Court will not Order for a retrial. Case in point was in Jumba Joshua aka Suleiman aka Kirabo vs. Uganda, CACA No. 087 of 2021, this Court held that;

"The assessors v,ere grided and they understood their role. 'l.hey lulJilled it but the Judge's notes on hov, he summed up .fbr the ussessors are missing.from the record. Given lhal the proseculion

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49.1 The Court in Jumba (Supra) when declining to order a retrial relied on the decision of this Court in Adiga Johnson David vs. Uganda; C. A Criminal Appeal No.0l57 of 2010, where the Court statcd:

"the overriding purpose ofa retriol as stdled in the case o/ Rev. Father Santos Ll/akpora vs- Uganda C. A. C. A No. 204 of 2012, is to en.ture lhal lhe cause of ju,;lice is served in u case be/ore Court. ,4 seriou.s error committed as lo lhe conducl of a lrial or lhe discovery of nev, evidence, lhat v,as not obtainoble at lhe triol, are lhe major cons ideral ions .fitr ordering o retrial. l'he Court lhat has lried a case should be oble to correct lhe errors as to the manner of the conduct of the trial or lo receite other evidence that v,as then not availablc. Ilowever, that must ensure thot the accused person is not subjected to double jeopardy, by way of expense, delay, or inconvenience by reason of the retrial. 'l'he olher considerations lo be loken inlo accounl be/bre ordering a relrial include; u,here the original lrial u,as illegal or defective, the rule qfthe law that a man shall not he twice vexed for one arul the same cause ( Nemo bis vexari debet pro eadem cau.sa), where an accused v,as convicted of an offence olher lhan the one with ruhich he v,as eilher charged or oughl lo have been charged, the strength of the proseculion case, lhe seriousness of otherwise o./ lhe rffince, whether lhe original trial to the accused, t,ho should nol sufer a second lrial unless lhe inlercsl ofjustice so requirc ond the length ol time between lhe commission ol the o/fence and the new triol, ancl v'hether the evidence will be available at the neu' trial. see Ahamed Ali Dharamsi Sumar vs. R fi9641 EA 481; Ta mano vs. ^R! 19691 EA 126."

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- 50.] After considering the evidence on record and the above cited authorities, it would have been a serious crror if there was no evidence on the rccord that the summing up was done. We are ol the view that failure to file thc summing up notes alone cannot be said to be a serious error to warrant a rctrial. There is evidence that the Judge summed up the evidence and this guided the assessors in making their opinion. We decline to fault the trial Judge. - ⁵^I.l This ground fails.

#### GROUND 6

### That the learned trial .ludgc erred in law and fact when hc imposed ^a harsh severc and exccssivc scntcnce of 60 ycars on thc appellant without considering mitigating factors hcncc occasioning to miscarriage of justicc, 15

- 52.1 It was submitted for the appellant that had the leamed trial Judge addressed himself properly on the law goveming sentencing, taking into account thc mitigating factors pleaded by the appellant, probably he would have arrived at a different position owing to the fact that the victim never contracted I-llV. - 53.1 Counsel contended that the trial Judge's discretion was based on biblical teachings other than the State law, as the said sentence was so severe to the extcnt that evcn God granted Adam a right of rcdemption with the appropriate sentence upon eating the forbidden lruit, thus same (appropriate and lesser sentence) be accorded to the appellant to serve. - 54.1 Counsel submitted that thc Court is bound by the principle of stare decisis et non quiela movero. It was further argued that the element of

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consistency in scntencing is fundamcntal. Sce Mbunya Godfrey v. Uganda, (SCCA No.4/2011.)'l'o emphasize his point counsel cited John Kasimbazi & Ors v. Uganda, (CACA No. 167 of 2013) where the appellants were charged with murder and scntenced to life imprisonment, and on appeal this Court reduced this sentencc to 12 years. -l'he court considered their appeal. Furthermore, in the case ol Magala Ramadhan v. Uganda (SCCA No. l/2014), the Supreme Court reduced 2 counts of murder lor l4 years to 7 years' imprisonment on cach count.

55.] According to the judgment it indicates that the convict is a first time offender with no previous criminal record, he did not waste the court's time, the victim never contracted tlIV, he was married and with littte children who still necd his care.

56.] Considering the above authorities and the mitigating factors, it was firmly submitted that 60 years' imprisonment imposed on the appellant was too harsh, severe, and excessive bearing in mind the gravity of other offences involving violence and death such as murder, aggravated robbery, have served appropriatc sentenccs detcrmincd by this Court, as illustrated above.

57.) Counsel prayed that this ground be allowed.

#### Submissions by counsel for thc respondcnt

58.] For the respondent, counsel submitted that the sentence imposed on the appellant was neither harsh nor manifestly exccssive. The Appellant was convicted of Rape under Sections 123 and 124 of the Penal Code Act, an offence that carries a maximum sentence of death. The Constitution (Sentencing Guidelines for Courts of Judicature) (Practice) Directions, 20 l3 19 lPage 25

- ⁵ prescribes a sentencing range of 30 years' imprisonment to death for rape. 'l'he proposition by the appellant that 60 years is manifestly excessive is not sustainable, considering the violence that was used on the victim. 1'he gang rape of the victim without protection. The Judge observed the trauma of the victim during the trial. This court was invited to find that the trial Judge passed an appropriate sentence. - 59.1 An appropriate sentcnce is a matter lor thc discretion of thc scntencing Judge. It is a well settled law that a scntencc is at the discretion ol'a trial Judge and an appcllate Coun will only interl'cre with a sentcnce imposcd by the trial court il it is evident that thc sentence was illegal or harsh and manilcstly cxccssive to amount to injusticc as was held in Kyalimpa Edward vs. Uganda, SCCA No. l0 of I995 that:

" liac'h case presents it:; own .fact:r upon which a judge exercises his discretion. It is the practice lhat a.t an appellate court, this court v,ill not normully interfere y,ith the discretktn of the sentencing Judge unlcss lhe senlence is illegal or the courl i.s sati:./ied that lhe senlence imposed by the'l'rial .ludge v,as manifestly so exce.tsiye os to amount lo an injuslice. I.he appellate courl v,ill nol inlerlere v,ith the discrelion oI lhe sentencing .ludge except also in instances where the triul courl ignores on importunt mcttler or circumstances which ought lo be considered v,hen passing the sentence. '

60.] As regards consistency, it was submitted for the respondent that each case should be considered on its own merit. Counsel argued that whereas the courts have passed sentences of less than 60 years for rape, it has also imposed longer sentences. In the case of Atugonza vs. Uganda, SCCA No. ll of 2018 (unreported), the Supreme Court upheld a sentence of life

20 lt,age

' imprisonment for rape.

⁵ 61..| In the alternative, counsel invited Court to consider the violence used against the victim by the appellant during the commission of this offence and sentence the appellant to 30 years' imprisonment. In the case of Mubangizi Alex vs Uganda, SCCA No. 0012 of 2012(unreported), the Supreme Court upheld a sentence of 30 years' imprisonment imposed on the appellant forthe offence ofrape. Irurther, the counsel prayed court finds that the cases relied on by the appellant are not relevant to the instant casc and are distinguishable lrom the instant case because thc lacts and oflences with which the appellants were convicted and sentenced are different from the instant case. The cases cited by the appellant of John Kasimbazi & Ors vs Uganda, CACA 167/2013, and Magala Ramadhan vs Uganda, SCCA 1/2014 are murder cases. 10 15

## Consideration of Cou rt

62.1 'Ihe law rcgarding sentencing and thc circumstanccs under which thc court can interfere with thc discretion of the trial Court is well settled in Kyalimpa Edward vs. Uganda; Supreme Court Criminal Appeal No.l0 of 1995, thc Court relied on R vs. Haviland (1983) 5 Cr. App. R(s) 109 and held that:

> "ln oppropriate senlcnce is o motter .t'br lhe discrelion oJ thc senlancing.iudge. lisch case presenls ils o\,n ./acts upon v,hich ^u jttdge exercises his discretion. lt is the practice thul as an appellale courl, lhis court will not normally inter/ire y'ith lhe discretion of lhe sentencing jutlge unless the scntence is illegal or unless lhe court is satisJied lhat lhe senlence imposed hy lhe trial .judge uas monifeslly .so exce.rsiue as lo amounl to an injustice: Ogalo s/o

21 lPage

## ⁵ Owoura vs. R (1954) 2l E. A. C. A 126 and R vs. MOIIAMEDALI JAMAL (1948) t5 E. A. C. A 126."

# 63.] In Kiwalabyc vs. Uganda, Suprcmc Court Criminal Appeal N0.143 of 2001 it was held:

"'l'he appellate courl is not to interfere u,ilh sentence imposed by a lriol court which has exercised its discretion on senlences unless lhe exercise qf the discretion is such that the trial court ignores k) consider an imporlanl maller or circumslonces which ought to be considered when possing the senlence. "

- 64.1 In this case the appellant's counsel was of the view that had the trial Judge properly considered thc mitigating factors, he would have come up with a diffcrent sentence. The mitigating factors in this case were the appellant was a first time offender, and has a family with little children to takc care of. -l'he victim did not contract HIV even when hc did not use the condom. 15 - 65.] Whilc sentencing the Judge considered both the mitigating and aggravating factors. Guided by the above authorities we shall consider decided cascs to establish whether the sentence was manilestly excessive. In Biguraho Adonai vs. Uganda, Criminal Appeal 007 2012, this Court upheld a sentence of 25 years as appropriate. In Mubangizi vs. Uganda, Criminal Appeal No 0012 of 2012, the Court upheld the sentence of 30 years' imprisonment. 20 25 - 66.] We think that if the trial Judge considered the need to maintarn uni[ormity of sentence he would have imposed a lesser sentence. We acknowledge the fact that thc victim was gang raped, however considering

22 lP age

⁵ all the circumstances of the case, we think a sentence of 60 years was manifestly excessive to do justicc to the case. It is for this reason that we allow the appeal and reduce the sentence from 60 years to 35 years from the time of Conviction. We shall deduct the 2 years and l0 months spent on remand and the appellant shall servc a sentcnce of 32 years and 2 months ¹⁰ from 04 11212018.

- 67.) This ground succeeds - 68. J Conscquently, thc appeal partially succceds.

We so Ordcr l)atcd at Kampala this day of All,^/ 2023 CIIEI}ORION I}ARISHAKE JUSTICE OF APPE,AL 20 t, ²⁵ OSCAII KIIIIKA JUSTICE OF ryPPffAL 15 yt-CHRISTOPH E,R GASHIRABAKE JUSTICE OF APPEAL