[2025] UGCA 195

# THE RTPUBLIC OF UGANDA IN THE COURT OF APPEAL OF UGANDA AT KAMPALA CRIMINAL APPEAL NO. 112 of 2Ol4

I(AWEESA ABDUL ................. APP8LLANT

### \IERSUS

UGANDA.... ...... RTSPONDENT (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 3m day of April, 2OL4l

CORAM: HON. JUSTICE RICHARD BUTEERA, DqI HON. JUSTICE EVA K. LUSWATA, JA HON. JUSTICE OSCAR JOHN KIHII(A, JA

#### JUDGEMENT OF COURT

# Introduction

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

### Background

[2] The brieffacts 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,d day of October, 2010, at around 16:0ohrs, 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 frght, 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 23:0O 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 instantly. 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 2010 when he was a-rrested by the Police acting on a tip off by a traditional hea-ler.

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[ ] The appellant was indicted for the offence of murder, to which he pleaded guilty and was sentenced to 35 years'imprisonment. Being dissatisfied, the appellalt 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 manifesdy excessive given the circumstances of O the case.

# t6l Appearances

At the hearing of the appeal, Mr. Mohammed Mbalire 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.

t7l Both Counsel relied on written submissions which have been O 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 circumstances. 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

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

"...1t is the dutg otthts court uthlle deallng uttth appeals regardlng sentenclng to ensure conslstencg wlth cases tltot houe simllar facts. Consistencg ls a dtal ptlnciple ln a sentenclng 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 O that the period that the appetlant 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 O 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 2O18; 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 2OlO in support of his contention and prayed that the Court confirm the sentence passed by the trial Judge.

## Consideration by Court

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

"... lt ls utell settted thqt a court of appeal wlll not lnterJere wtth the exercise of dlscretlon unless there hos been a fallure to toke lnto account a materlal consideratlon, or an error ln prlnclple utas made.u

O See also Sekandi Hassan v Uganda SCCA No.25 of 2OL9, Livingstone I(akooza v Uganda SCCA No. L7 of 1993 [unreported] andJacksonZita vUganda, SCCANo. 19 of 1995.

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

"The State Attorney, Ms. Namala Amina, has gone to length to state the aggrauating factors to wit, Degree of injury serious neck O injuries, cntshed brain, the deceased uas pregnant, lefi Aoung children, her being their bread utinner. The weapon used utas an axe to cause death to a rrulnerable uictim. She uas dntnk and pregnant. I note other aggrauating factors. Olfence was committed in presence of children and he ran autag afi,er committing the act in an effort to conceal himself.

> Inparagraph2O(p| the deathhas had animpact onthe children. Theg lost a bread utinner and a mother who cannot be replaced. Also the communitg utas affected by a sudden death of the

deceased. I note the pain and anguish the children haue undergone. The wounds are brutal as per the photos exhibited in court (P. Exh.4). the conuict brutallg murdered the deceased, the brain tissue was exposed. Murder attracts death penalty. I haue also considered the mitigating factors: first time offender, readily pleaded guilty but without remorsefulness consideing tLe fact that he was smiling as he mentioned the deceased being a concubine another mitigating factor is that according to charge and caution uhich has been exhibited as P. Exh.2, the deceased fi.rst took an axe and tied to hit him which prompted him to retaliate in (s-d) bg hitting her on the head. Houteuer, Iooking at the wounds inJlicted wherebg the brain lissue oozed out, he exceeded the reasonable force in the ciranmstances, he was gouthful and is still so. At the time he was 33 gears old he had a familg i.e. children and a mother whom he would look afier from his suLeat as a businessman. The Prosecutor has praged for life impisonment. The eldest child of the deceased, Sgluest Saaka, on behalf of his siblings has also asked for life impisonment.

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The learned Defence Counsel, Mr. Richard Luanga, has aduocated for 7 5 gears' impisonment and the conuict has prayed for logears. I haue considered the circumstances of this case, / find that the aggrauating factors outueigh the mitigating factors. A life was suddenly extinguished get so mang people mainly children depended on it. Whateuer th.e anger and jealousness, the conuict should haue simply moued out of the deceased's home but to kill her in her own home is an aggrauating factor. That's uhg there is a law against domestic uiolence and euen murder. Ideally, you deserue to die. Howeuer, it is not imperatiue or mandatory for me to mete out a death penaltg and since gou haue some mitigating factors though weak; I will spare the death penaltg. Howeuer, the pain, anguish and deterrent sentence. I haue taken into account the period of (4) gears spent on remand I am guided by part L Third Schedule and the deterrent principle of sentencing. I hereby sentence the gou to a term of a imprisonment of 35(Thirty-Fiue) gears."

- [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 after considering the mitigating and aggravating factors. In the matter before us, the Learned Trial Judge sentenced the a appellant to a term of 35 years'imprisonment, which is lower than the maximum penalty of death. - [16] In our view, the learned trial 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 2O18; Karisa Moses v Uganda, Supreme Court Criminal Appeal No. 5O of2O15.

- [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;

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"...... I haue taken into account the peiod of (4) gears spent on remand I am guided by part 1 Third Schedule and the deterent pinciple of sentencing. I herebg sentence the you to a term of impisonment of 3 S(Thirty -Fiue) gears...... "

- [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. - [2O] 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,

uWhere a person ls coruicted qnd sentenced to a terrn of imprisonment for an offence, ang perlod he or she spends in lawfut custodg in respect of the offence before the conpletlon of hts or her trtal shall be taken lnto account ln lmposlng the tenn of lmprisonment. D

Principle 15 of the Sentencing Guidelines provides that.

\*(7) The court shall tdke lnto qccount ang perlod spent on the sentence consldered approprlate afier alltactors haue been ta,ken lnto account. D

- [2 1] In the case of; Rwabugande Moses v Uganda Supreme Court Criminal Appeal No. 25 OF 2014, it was held; oThat a sentence orriaed at wlthout putting into consideratlon time spent on remand uos lllegal for fallure to complg urith a mandatoryconstlttttionalprovisions. Coutl-furtlneremphorslzed thqt the considerqtlon ought to be q mathematicql deduction considering the fact that the time spent on remand is spectficallg knoutn.' - 122l As stated before, in the instant appeal before us, the learned trial 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 April 20 14. This was well before the decision in the Rwabugande Case (supra), which was delivered on 3.a March 2OI7.

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[23] As such, the sentencing court was, under the principle of stare decisis, bound by the then prevailing interpretation of Article 23(8) 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, Kizito Senkula vs. Uganda, Supreme Court Criminal Appeal No. 24 of 2OO1 (unreported) where the Supreme Court held:

"As we understand the provlslons of Arf;lcle 23 (8) of the Constlf;,ttlon, theg mean that when a trlql Court lmposes o tenn of lmprlsonntent as sentence on the coruicted person the Cout't should take lnto account tle perlod uthlch the person spent ln remand prlor to hts/her convlctlon. Taklng lnto qccount does not rmean an arlthmetical exerclse."

[24] When the Supreme Court changed its position in March 2017 through the Rwabugande Case (supra), and took the route of arithmetical O deduction, then the new position became binding authority on the Supreme Court itseif and all the lower Courts effective March 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 declslon (Rwabugande) ta.o,s deliaered. on 3rd March 2077. In accordance ulth the prlnclple of precedent, thls Court and the Courts belout hann to follout tle positlon of the laut from a thot date hence forth.'

[25] It is on account of the above that we therefore calnot 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.

We so order.

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Delivered and dated this day of 2025

a HON. MR. JUSTICE RICHARD BUTEERA

Deputy le Justice

## HON. LADYJU CE EVA LUSWATA

Justice ofAppeal

v

HON. MR JUSTI JOHN KIHII(A

Justice o)Affial