[2025] UGCA 191

## THE REPUBLIC OF UGANDA

### IN THE COURT OF APPBAL OF UGANDA AT MASINDI

(Coram: Dr. Flavian Zeija,DCJ, C Gashirabake, K K Katunguka, JJA)

# CRIMINAL APPEAL NO. 0196 OF 2022

#### BETWEEN

# KYALIGONZA RICHARD JOSEPH APPELLANT

#### AND

#### RESPONDENT UGANDA:

(Appeal from a decision of the High Court of Uganda sitting at Masindi (Rugadya Atwooki , J.), delivered on the 24'h day of April 2017 in Criminal Case No. 0037 of 201 5)

### Introduction:

l. The appellant, was indicted and convicted on two counts of murder contrary to Sections 188 and 189 ofthe Penal Code Act. The appellant, on the 4th day ofJune 2014, at Kyenzige "A" village, Kyenzige sub-county in Kibaale district, murdered Tibeijuka Mary and Abigaba. The appellant entered into a plea bargain agreement and was sentenced to I 7 years and 4 months on each count to run concurrently.

#### Background:

- 2. Tibeijuka Mary- deceased l(Dl), had cohabited with Kyaligonza Richard alias Joseph the appellant for 6 years. During this period, Tibeijuka gave birth to Abigabadeceased 2 (D2) who at the time of death was aged 3 years. - 3. The couple developed misunderstandings which prompted Dl to move with D2 to stay with her brother at Muhooro town Council. Later, Dl moved to Kyenzige to

eA6{ \*.

Page 1 of 8

visit her other brother and stayed there. When the appellant learnt that the deceased persons were in his village (Kyenzige), he visited them and convinced Dl to return home. The following day, on 4th June 2014 the two were found burnt to death.

- 4. The appellant went on the run till he reported himself at Kibaale Police Station. He was alrested, detained and accordingly charged with the murder of the deceased persons. The remains of the deceased persons were examined, and the evidence proved that they both died due to fire burn shock; the appellant was examined on PF 24 and found to be sane at the time he committed the murder. - 5. He was indicted for the murder of the two persons. When the matter came for trial, the accused pleaded guilty, and a plea bargain agreement was executed. The court sentenced him to l7 years and 4 months imprisonment on each of the two counts of murder; he appealed challenging the legality of the sentence. On the ground that;

The Triol Judge erred in law and fact in sentencing the appellant to 17 yeors and 4 months imprisonment on eoch count of the two counts, during a pleo bargain which is deemed to be an illegal sentence.

#### Representation.

- 6. At the hearing of the appeal, Ms. Harriet Ajok appeared for the Appellant while Nanziri Charlote, Senior State Attorney holding brief for Senior State Attorney Aleto Innocent appeared for the Respondent. - 7. The appellant was present online via audio visual link. Though the appellant refused to speak, court was convinced that the appellant could hear what was happening in court. The prison warder also present online informed this court that the appellant had refused to talk. Nonetheless, the appellant was represented by counsel whose submissions were on record, and this court went ahead to consider the appeal.

c^m,f{ Cr

Page 2 of 8

### Appellant's submissions.

8. It was submitted for the appellant that page l9 of the record of proceedings does not indicate the years which the appellant agreed to be sentenced, much as the record shows the appellant signed the agreement. The appellant prayed that the plea bargain agreement be re-assessed, and the sentence be set aside for being illegal.

### Respondent's submissions.

- 9. Counsel submitted that the sentence of 17 years and 4 months is legal even if it appears on page I I rather than page l5 of the Plea Bargain Agreement; that this was an eror which is a technicality that does not lead to a miscarriage ofjustice. Counsel cited Article 126 of the Constitution of Uganda and Section 34( I ) of the Criminal Code Procedure Act. Counsel submitted that it is not true that the Trial Judge did not base himself on the plea bargain agreement to give a Sentence of l7 years and 4 months imprisonment. That contrary to the appellant's counsel's contention that probably the appellant may have been sentenced to a lesser sentence, the sentence handed down was as per the plea bargain agreement which the appellant signed. - l0. Counsel restated the position of the law that sentencing is the discretion of the Trial Judge and an appellate court can only interfere with the sentence of a lower court where in the exercise of its discretion, the court imposes a sentence which is manifestly excessive or so low as to amount to a miscarriage ofjustice or where the court ignores to consider an important matter or the sentence imposed is wrong in principle. - ll. Counsel cited Kiwalabye Vs Uganda, Criminal Appeal No.143 of 2001 as cited in Kawooya Joseph Vs. Uganda, Criminal Appeal 0512 of 2014; Francis Masaba Vs Uganda, SCCA No. 24 of 1984, cited with approval in Kapinda Boniface &

A,@d &--

Page 3 of 8

Tumuheki Molly, CACA No.0108 & 0098 of 2011, at page 37 paragraph 130, where court held-:

"These provisions recognise that with the best will in the world, there will be inattention to some matters, while other aspects of a trial receive prominence. There are some irregttlarities which it is the duty of litigants or their counsel to point out to the Court, at the time for example complaints of duplicity or the court's omission to take some steps in the procedure. It is another matter if the Court has erred on a point on which counsel cannot react. But when counsel can act he mtrst do so, which is a duty to the court qtrite dffirentfrom the defense position... In this case if there was on eruor in the procedure and no objection was taken at the time, ......., it is reasonable to conclude that the act was carried out as prescribed by law".

12. Counsel further submitted that the appellant agreed to the l7 years and 4 months sentences at the time of the plea bargain which he consented to by appending his signature on the Agreement. That neither the Appellant nor his counsel raised any objection to the sentences at the trial. Counsel prayed that this court finds that the sentences passed by the trial court were legal, and that the parties freely and willingly consented to the sentences. That this appeal is disallowed and the sentence upheld.

# Court's consideration.

l3. We appreciate the law as cited by counsel on the role of this court as also outlined in the Supreme Court decision of Oryem Richard v U that; gandf SCCA No. 22 of 2014,

"Rule 30(1) of the Court of Appeal Rules, places a duty on the Court of Appeal, as the first Appellate Court to re-appraise evidence on record and draw its inference and conclusion on the case as a whole by making allowance for the

CM &

Page 4 of 8

fact that it has neither seen nor heard a witness. This gives the appellate court the duty to rehear the case.".

- l4. This Court can only interfere with the sentence of the trial Court if that sentence is illegal or is based on a wrong principle, or the Court has overlooked a material factor, or where the sentence is manifestly excessive or so low as to amount to a miscarriage of justice. (see Kiwolabye Bernard V Uganda, Supreme Court Criminol Appeol No.143 of 2001), also cited by counsel. - 15. Rule 4 of the Judicature (Plea Bargain) Rules, 2016 defines Plea bargain agreement to mean an agreement entered into between the prosecution and an accused person regarding a charge or sentence against an accused person.

Rule 8 (1) provides: 'The court may participate in plea bargain discussions. (2) The parties shall inform the court of the ongoing plea bargain negotiations and shall consult the court on its recommendattons about possible sentence before the agreement is brought to court for approval and recording.'

- 16. When recording a plea-bargaining agreement, the court is mandated under Rule l2(1xd) to inform the accused person of his or her rights and shall satisfo itself that the accused person understands any maximum possible penalty, including imprisonment, fines, community service order, probation or conditional discharge. - lT. When an accused person opts to plead guilty under a plea bargain agreement, it is the mandatory duty of the trial court to inform the accused of his or her rights and to satisff itself that the accused understands the important matters set out under Rule 12 (1) (a) of the Rules. Under Rule 12 (4) of the Rules, the trial court is also required to confirm that an accused person freely and voluntarily, without threat or use of force,

U'u'{ . M

Page 5 of 8

executes the agreement with full understanding of all matters. These requirements are intended to preserve the accused's non-derogable constitutional right to a fair hearing.

# 18. In Aria Angelo versus Uganda, Criminal Appeal No. 439 of 2015; this court observed that;

'For an agreement to plead guilty, to be valid, the accused must (i) accept the plea bargain infull awareness of thefacts of the case; (ii) accept the plea bargain with full awareness of the legal consequences; and (iii) accept the plea' bargain in ^a genuinely voluntary manner......... 'The judge or judicial fficer may recommend ^aparticular sentence which in his or her opinion serves the justice of the case'.

l9. At the beginning of the plea bargain agreement subject of this case, it reflects l7 years and 4 months for each count to run concurrently, written against the two counts. The record of the trial court proceedings shows that the appellant appeared before the Trial Judge, the charges were read and explained to him in a language he understood, and he pleaded guilty after confirming that he understood the charges. Thereafter, the record runs as follows:

"Court: 'Kyaligonza Richard alias Joseph, I am told that you have signed an agreement in which you agreed to plead guilty to a sentence and that you have signed this document. Is that correct that you signed thts document?' Accused: 'Yes'. Court: 'You have signed it of yourfree will without being forced or coerced '. Accusedz'Yes '. Court: 'You have signed it after being explained the full charges against you and that all your rights have been explained to you? 'Accusedl.'Yes '. Court: 'Have you been told about your right not to plead guilty?' Accused : 'Yes '. Court: 'That you are presumed innocent unless you admit the offince, and that you have a right to remain silent...'Accused: Yes "'.

&--

Page 6 of 8

- 20. According to the above extract of the proceedings, the Appellant, on his own plea of guilty, voluntarily consented to the agreement. The sentence was indicated in the agreement which the appellant endorsed. - 21. We therefore find no sufficient evidence to show that the appellant signed the plea bargain agreement without understanding the sentence or consequences thereof; for clearly, the court explained the nature of the sentence to be imposed, to which he consented. The court record shows that the accused had legal representation. [f at all, the accused disagreed with the sentence, there was room for protest before court. - 22. We disagree with counsel for the Appellant's argument that because the sentence was not indicated down where the accused signs, the sentence is illegal. In our view, this occasioned no miscarriage ofjustice since the sentence was indicated against the two counts. The sentence, as shown in the agreement, is legal and forms part of the plea bargain agreement. - 23. The appellant's prayer that the plea bargain agreement needs to be re-evaluated and reassessed in terms of sentence has no justification; the Appellant was properly and legally sentenced. He shall continue to serve the sentence as handed down by the trial court.

| The appeal is dismissed. | |---------------------------------------------------------| | We so order. | | tE,<br>v<br>Dated this<br>)3.<br>of J.:"L lr:<br>2025. | | | | | | FLAVTAN ZErJA(PhD) | | Deputy Chief Justice |

Page 7 of 8


# CHRISTOPHER CASHIRABAKE

Justice of Appeal

# KETRAH KITARIISIBWA KATUNGUKA

Justice of Appeal

Page 8 of 8