[2019] UGSC 95

## THE REPUBLIC OF UGANDA

# IN THE SUPREME COURT OF UGANDA AT KAMPAI,A

# Coram: lKatureebe, C. J; Mwangusya; Opio-Aweri; Buteera; JJ'S'C; Nshimye; A. G. JJ. S'Cl

## CRIMINAL APPEAL NO. O4 OF 2OI6

#### BETWEEN

# KYATEREKERA GEORGE WILLIAM : : : : : : : : ! : : : : : : : : : : : : : : : : :APPELLANT

#### AND

# UGANDA:::::::::::::::::::::::::::::::::::::::::::::::::::::]:::::::: RESPONDENT

(An appeal arising from a decision of the Court of Appeal of Uganda at Kampala in Criminal Appeal No.t l3 of 2010 decided by SOLOMY B' BossA' K E N ^NEr H .1 I,".:y ;ifl ljl fr:,t'u RA' I J A ^da ted the

## JUDGMENT OF THE COURT

This is a second appeal arising from a decision of the High Court delivered by Hon. Yorokamu Bamwine, J (as hethen was), at Mbarara on 7'h July 2010 in HCT-05-CR-CSC-O I 28/20 I 0.

#### Backeround

)

on 24'h December 2003, Hope christine (the deceased / appellants ex-girlfriend) was having lunch with Nnakandi Gloria (PW9) and Namugerwa Jackline (PW2) at Nnakandi Gloria's bar situated at Mile two, Ibanda town in Ibanda District. The appellant came to the same bar, had some drinks and left. The deceased also teft and went to her residence. The appellant followed her and stabbed her with ^a knife in the chest and fled the scene. Attempts to arrest him as he fled were futile. The appellant dropped some of his clothes as he fled which were picked up by Sebahire Fulgence (PW5) while running after him. The deceased died of the stab wound shortly afterwards. The appellant was later arrested in Jinja on 8'h March 2006 and indicted with the murder of the deceased on I 'r of August 2006.

In order to prove its case against the appellant at the trial, the prosecution adduced evidence of 9 witnesses. In his defence, the appellant testified on oath and put up a defence of alibi. He did not call any witnesses.

The learned trial Judge betieved the prosecution witnesses and rejected the appellant's defence ofalibi. He held that prosecution had proved its case beyond reasonable doubt, convicted the appellant for murder on 7'h July 2010 and sentenced him to 30 years imprisonment.

Aggrieved by the decision ofthe trial Judge, the appellant appealed to the Court of Appeal on both conviction and sentence. The Court of Appeal dismissed the appeal, upheld the conviction and sentence as passed by the trial Judge.

Being dissatisfied with the decision ofthe Court of Appeal, the appellant appealed to this Court against conviction and sentence on the following grounds:

- l That the learned Justices ofappeal erred in law when they rejected the appellant's sworn defence of alibi and wrongly relied on prosecution evidence which were tainted with great inconsistences to uphold the appellant's conviction. - 2. That the learned Justices of appeal erred in law in upholding the ³⁰ years imprisonment, imposed at trial without consideration of the material legal matters thus caused a miscarriage of justice to the appellant.

#### Rerrresentation

a

At the hearing of the appeal, Ms. Wakhabala Susan Sylvia told Court that she was supposed to represent the appellant on state briefand file the submissions but the appellant opted to file his own submissions. Counsel opted to withdraw from the case. The appellant explained to Court that he had decided to represent himself. Court advised the appellant Io seek legal counsel considering the gravity of the

off-ence he was charged with. The appellant, however, insisted on selfrepresentation and then Court proceeded in accordance with his wish.

The respondent was represented by Ms. Barbra Masinde, a senior State Attorney.

Both the appellant and counsel for the respondent filed and adopted their written submissions which we have studied together with the records of lower Courts, Judgments and relevant authorities to this appeal. We have used all those in resolution of the appeal.

#### Su bm issions

# (iround I

That the learned Justices of appeal erred in law when they rejected the appellant's sworn defence of alibi and wrongly relied on prosecution evidence which were tainted with great inconsistences to uphold the appellant's conviction.

# Annellant's submissions on ground I

On the inconsistent prosecution evidence, the appellant submitted that the lower Court erred to have believed and heavily relied on evidence of Namugerwa Jackline (PW2), Tugume Baraba (PW3), SPC Kyombe Juma (PW7) and Nnakandi Gloria (PW9) as evidence of the alleged eye witnesses who interacted with the appellant before, and immediately after the said events leading to the murder of the deceased. According to the appellant, it was wrong for the Court to only look for favourable conditions that tended to prove that the appellant was identified and leave out gaps in the prosecution's case that showed reasonable possibilities of unfavourable circumstances for the correct identification of the appellant by the said prosecution witnesses mentioned above.

The appetlant contended that he was a stranger to PW2, PW3, PW7 and PW9 and they could therefore have mistakenly identified him as the assailant. He added that while a knife and ajacket were recovered from the scene, the record of Court is silent on whether the appellant's finger prints were lifted from these exhibits to squarely put him at the scene.

He submitted that PW7's testimony connecting the positive identification of the appellant was not supported by documentary evidence on the allegation that the appellant reported the deceased to the police for having stolen 800,000 shillings from him on the fateful day. He argued that the Police ought to have adduced evidence of the alleged reported complaint or case reference number dated 24th December 2003 from the 'station diary book' at Ibanda Police Station.

He argued that the standard of proof in criminal cases should be proof beyond reasonable doubt and this was not futly discharged by the prosecution in regard to identification evidence which was used to convict the appellant.

The appetlant contended that there were major discrepancies in the testimonies of PW2 and PW9 regarding identification of the appellant at the scene. According to the appellant, the evidence of PW2 and PW9 is doubtful because they had only met the appellant once in their lives. He argued that PW2 and PW9 could not have been able to identifo a person they alleged to have seen only once,7 years after the incident.

He added that much as PW2 and PW9 testified that they saw him at the bar when he was inquiring about the deceased and sat to take beer at the bar, the record does not show that PW2 and PW9 attempted to describe the appellant to the pollce when they came to respond to alarms until when his photograph was introduced ^aday later by the deceased's paternal uncle Byabaganbi Kabakye Abel (PW8).

The appellant submitted that according to the summary of evidence before the Magistrate's Court, the appellant was seen by Katushabe Gloria and Kyomugisha

Allen who made alarms as he fled the scene of crime. However, two different ladies, Namugerwa Jackline (PW2) and Nnakandi Gloria (PW9) purported to be the ones who identified the appellant at the scene and made alarms. According to the appellant, this was a substantial matter that was not raised during trial or the first appeal due to weakness ofcounsel. He argued that counsel's mistakes should not be visited onto him and that this new matter should not be taken as a falling position or an afterthought because they are sought from evidence on Court record. He prayed that Court proceeds under Rule 2(2) of the Supreme Court Rules and exercise its inherent powers to entertain it.

He further argued that Katushabe Gloria and Kyomugisha Allen should have been summoned to testify to prove the case against the appellant beyond reasonable doubt.

He contended that the Court of Appeal simply pointed out the contradictions in the witnesses' evidence but failed to consider the major discrepancies and never made a comment on them.

On the defence of alibi, the appellant submitted that he had lost his mother in 2002, sold the Kibanja plot at Mbarara, relocated to Kampala and later shifted to Jinja where he was doing business at the time of his arrest. He argued that he could not be construed as the person who escaped from Mbarara immediately after altegedly murdering his ex-girlfriend (the deceased).

According to the appellant, he had lost contact with the deceased in early 2002 and the prosecution never put any rebunal evidence that he was seen in Mbarara or Ibanda because there was no evidence of telephone contact with the deceased or that of the 'station Diary Book' where he allegedly reported a case against the deceased at Ibanda Police Station on 24'h December 2003 to destroy his alibi.

He prayed that this ground ofappeal be allowed and the conviction quashed.

## Submissions of co ^unsel for the resoondent

Counsel for the respondent submitted on ground I that the Court of Appeal Justices restated the law on alibi, specifically as to what amounts to putting an accused person at the scene of crime. She added that both the lower Courts made concurrent findings that the appellant was placed at the scene of crime by direct evidence of both PW2 and PW9, in spite of the minor contradictions in their testrmonles.

According to counsel, the appellant's alibi crumbled when he was placed at the scene of crime by PW2 and PW9.

On the appellant's contention that the identification evidence on which Court relied did not destroy the appellant's alibi because the appellant was a stranger to all the eye witnesses, counsel for the respondent argued that the whole incident occurred during the day between 3:00 pm and 5:00 pm and there was sufficient time for the witnesses who met the appellant to properly identifo him'

Counsel submitted that the Court of Appeal Justices restated the law on identification and revaluated the evidence on record. The Justices noted that the trial Judge warned himself and the assessors ofthe need for caution before basing a conviction on the correctness of identification.

She funher submitted that the direct evidence of the appellant's participation is strengthened by the following circumstantial evidence:-

- L The appellant reported the deceased to lbanda Police for theft ofhis money but he complained that they had not helped him. - 2. The appellant followed the deceased to her residence where she had gone to rest - 3. PW2 saw the appellant running away from the scene of crime, while the hotel owner was shouting behind him that he had killed a person.

- 4. PW2 also testified that the appellant was wearing a blue shirt and cream waist coat when he retumed in the coaster vehicle. - 5. PW5 testified that he chased the appellant who then removed his cream sleeveless coat and blue shirt and threw them at him. - 6. That there were two photos of the deceased and the appellant in the shirt pocket. - 7. PW9 testified that the appellant had said he would kill the deceased but when she told him he had no right to kill her, then he said it was a joke. - 8. That PW9 picked the appellant out of an identification parade.

According to counsel, all the above evidence go to support the direct evidence that Court relied upon to convict the appellant.

On the issue of not calling Katushabe Gloria and Kyomugisha Allen (who were listed on the summary of the case) to testiff, counsel submitted that the two only assisted in raising an alarm following the murder. She submitted that the purpose of the summary of the case is to give the appellant reasonable information as to the nature of the offence with which he is charged. She added that it is the prosecution's prerogative to decide which witnesses to call and that it is not necessary to calI a plurality of witnesses to prove a single fact. See: Section 133 ofthe Evidence Act. The fact ofraising an alarm had already been attested to by PW2 and PW9, making it unnecessary to call several other witnesses to prove the same fact.

The respondent prayed that Court finds that the direct and circumstantial evidence on Court record taken together sufficiently destroy the appellant's alibi.

#### Ground 2

That the learned Justices of appeal erred in law in upholding the 30 years imprisonment, imposed at trial without consideration of the material legal matters thus caused a miscarriage of justice to the appellant.

#### Anoellants Submissions on sround 2

The appellant contended that the period of4 years, 3 months and 2 weeks he spent on remand was simply taken into account but not arithmetically deducted by the trial Court and the Coun of Appeal while sentencing.

According to the appellant, the Court ofAppeal Justices should have deducted the remand period from the sentence of 30 years imprisonment in accordance with this Court's decision of Rwabugonde Moses vs. Ugando, S. C. C. A No.25 of 2014 and Tukumuhebwa David Junior & Anor vs. Ugando, S. C. C. A No.59 of 2016.

He further submitted that the mitigating factors were not properly considered by the lower Courts. He stated that he was a first time offender aged 35 years. He has 3 children who lack parental care and are more likely to suffer if left in the care of a poor guardian. He has been in prison since 22nd March 2006 and has demonstrated all indicators of reform. He has no bad character report. According to the appellant, had his circumstances and mitigating factors been adequately considered at the lower Court, a lower sentence would have been imposed.

He prayed that the sentence of 30 years be set aside and be substituted with ^a sentence of l8 years imprisonment and the remand period of 4 years, 3 months and 2 weeks be deducted therefrom.

### Submissions of counsel for the resnondent

On the second ground ofappeal, counsel for the respondent submitted that Court is not required to deduct the period spent on remand but simply take it into account in imposing the term of imprisonment.

Counsel contended that the decisions in the cases of Tukumuhebra (supra) and Rwabugande (supra), as cited by the appellant in support ofthe appeal have since been departed from by the Supreme Court and that this Court now reverted to the position in Kizito Senkula vs. Uganda. S. S. C.,{ No.24 of 2001, where court stated that taking into account the period spent on remand does not mean an arithmetical exerclse.

She added that since the remand period was considered by the trial Judge, it was unnecessary for the l" appellate Court and this Court to re-consider it.

As regards Courts consideration of the mitigating factors, counsel submitted that the Court of Appeal Justices considered both the mitigating and aggravating factors and found that the aggravating factors outweighed the mitigating factors and thus found no fault in the sentence imposed by the trial Judge.

She prayed that the appeal be dismissed

### Consideration of Court

This is a second appeal and the duty of this Court as an appellate Court is to determine whether the I st Appellate Court properly re-evaluated the evidence before coming to its own conclusion. This Court would only interfere in the clearest ofcases where the first appellate Court has not satisfactorily reevaluated the evidence on record. See: Kifamunte vs. Ugonda, (supra), Bogere Charles vs. IJganda, (supra) and Ongom John Bosco vs. Uganda Supreme Court Criminal Appeal No.2I/2007.

We perused the records of proceedings of the High Court and the Court of Appeal as well as the judgments of both Courts. We have also studied the submissions of the appellant and those ofcounsel for the respondent and the relevant available authorities. We shall now proceed to apply the relevant legal principles in resolution of the appeal.

## Grourrd I

It was the appellant's contention that the Court of Appeal Justices erred in law when they relied on prosecution evidence which was tainted with great inconsistences to discredit the appellant's swom defence of alibi and uphold the appellant's conviction.

In arriving at their decision on the inconsistencies in the testimonies of the witnesses, the Justices of the Court of Appeal stated:

"The law on contrudictions and inconsislences is well setlled. Maior contradictions and inconsistencies will usually result in the evidence of the witnesses being reiecled unless they are satisfactorily etplained owoy. Minor ones, on the olher hand, will only lead lo reieclion of the evidence if they point to deliberale untruthfulness. (See Alfred Taior vs Uganda lEACA|Cr. Appeal No.l67 of 1969 (unreported)).

Upon evaluating the evidence of PW2 and Pll/9 in the instanl case, we do find that there were minor inconsistencies in lhe testimonies which are attributable lo the long possage of time since the trial took place seven years after lhe incident. Their testimonies do not poinl to deliberate untrulhfulness bul minor contodictions capable of explanalion. The wilnesses described versions of the events of the day as each of them experienced or perceived it. PW9 testified that they run to the hotel while PW2's version was that she iust followed the appellant. Pll9 must have run ohead of Pll/2 and arrived there in time to witness the appellant stabbing the deceased and the deceased talked to her first. PW2 encounlered the appellanl as he was running away and then made an alam, went back where the deceased was and found the knife in her chesl. lile musl also observe that in a silustion of commotion like what the witnesses described in this case it would be dfficult to accurately explain events os they occurred.

Therefore, the minor inconsistencies reloting lo the two accounts are excusable given the lapse of time and they did not go to the root of lhe prosecution case. ll/e accept counselfor lhe appellant's submission lhat the trial Judge never menlioned the discrepancies in his Judgment. However, we ore of the considered view that failure lo mention the discrepancies by the trial Judge did not occasion misconiage of iustice upon lhe oppellant since they were minor and negligible. (See section 34 (l) of the Criminal Procedure Code Act Cap.l I6)

We are satisJied that the evidence olthe two witnesses was consistent in the material of the cose, namely that; the appellont had come lo the shop ond bar earlier that day and had the deceased token to lhe police stalion, lhe appellanl returned from the police station and took some drinks lhen he went oway. He loler came bock in s coasler and wenl lo lhe place where the deceased was residing, Pll2 and Pll9 followed him lhere, the deceased was stabbed with a knife in lhe chest, collapsed and died as the appellant run owoy from the scene of the crime,

For lhe above reasons, we ftnd no merit in lhis contention."

It is clear from the above portion of the Court of Appeal Judgment that the Justices extensively evaluated the alleged inconsistencies between PW2 and PW9's testimonies.

The appellant also contended that the appellant's finger prints were not lifted from the knife and jacket which were recovered from the scene to squarely put him at the scene of crime. He further submitted that PW7's testimony connecting

the positive identification was not supported by documentary evidence on the allegation that the appellant reported the deceased to the police for having stolen 800,000 shillings from him on the fateful day. He argued that the Police ought to have adduced evidence of the atleged reported complaint or case reference number dated 24th December 2003 from the 'station diary book' at Ibanda Police Station. He added that Katushabe Gloria and Kyomugisha Allen should have been summoned to testify to prove the case against him beyond reasonable doubt'

We have studied the record of the trial Court and the Court of Appeal and found that none of the above allegations were raised before the lower Court Justices for consideration. The appellant argued that the new matters raised were not raised before due to mistakes of counsel and should not be visited onto him.

The atlegations raise an issue of identification of the appellant's participation in the conrmission of the crinre.

In Criminal Appeal No. 09 of 1978, Abdullah Nabulere & Anor vs Uganda' this Court held that a Court should examine closely the circumstances in which the identification came to be made particularly the length of time, the distance, the light, the familiarity of the witness with the accused to avoid mistaken identity. Court added that when the quality of identification is good, as for example, when the identification is made after a long period of observation or in satisfactory conditions by a person who knew the accused well before, a court can safely convict even though there is no other evidence to support identification evidence, provided the Court wams itself of the special need tbr caution.

In arriving at their decision, the trial Judge and the Court of Appeal Justices were alive to the principles of identification laid out in Abdullah Nabulere (supra). The Justices noted that the offence was carried out in broad day tight between 2pm and 5pm. There was evidence of PW2, PW3 and PW9 who interacted with the appellant for a reasonable length of time at PW9's bar. PW7 SPC Kyombe

Juma to whom the appellant lodged a complaint about the deceased stealing his 800,000 shillings also identified him. PW4 D/Cpl Byakagaba Joseph, who was at Kyenjojo police station on the fateful day when the appellant took the deceased to Kyenjojo police station also identified him. Pw9 later saw the appellant stab the deceased with a knife he drew from his waist coat and thereafter fled the scene when an alarm was made. PW5 Sgt. Sebahire Fulgence heard the alarm and immediately run after the appellant to effect arrest. The appellant removed his jacket and shirt, run faster and disappeared. When PW5 checked the shit, it had two photographs of the appeltant and the deceased together. The photographs were exhibited at police and later adduced in evidence as Exhibit P3. All the witnesses were in close proximity with the appellant.

The Justices found that evidence from PW2, PW3, PW4, PW5, PW7 and PW9 satisfactorily identified the appellant as the deceased killer beyond reasonable doubt. We find no fault in that finding.

As regards the appellant's contention that Katushabe Gloria and Kyomugisha should have been called to testiry, we find that the issue of raising an alarm had already been attested to by PW2 and PW3. We agree with counsel for the respondent's submission that it is the prosecutions prerogative to decide which witnesses to call. It ls not necessary to call a plurality of witnesses to prove ^a single fact. See: Section 133 ofthe Evidence Act.

From the above analysis, we find that the Court of Appeal Justices properly evaluated the evidence in respect to identification of the appellant.

As regards rejecting the defence of alibi, the Justices of Appeal considered the defence and stated:

"lt is trite that when an appellant sets up an alibi which is a defence, such appellant does not assume on! responsibili4' 1o Orrr" it. It remains the responsibility of the proseculion lo place lhe appellant at the scene of

the crime by adducing evidence to lhal effect. It, on lhe consideration of the whole of the evidence, it isfound that lhe alibi is true or thut lhe Courl is left in doubl os lo whelher il is true or untrue, then the Courl is bound to give the appellant the benelit of the doubt and acquil him. Even where the prosecution has proved the alibi to be false, the courl slill has lo consider if the evidence adduced proves the case beyond reosonahle doubt. (see Uganda v Dusmon Sabuni (1981) HCB l).

As to what amounls lo putting an appellant dt the scene of the crime, the Supreme Court in Bogere Moses & Anor v Uganda, SCCA No,l of 1997, staled thus;

"What lhen amounts to pulting an accused person ot the scene of crime? We think lhat lhe expression must mean proof to the required standard lhat the accused was at lhe scene of crime at the moteriol time. To hold lhal such proof hos been achieved, the courl must not base itself on the isolated evaluation of lhe prosecution evidence alone, but must base itself upon the evaluotion of the evidence as a whole. llhere the prosecution adduces evidence showing thal the occused person was at the scene of crime, and the defence not only denies il bul also odduces evidence showing lhat the accused person was elsewhere ot the malerial time, il is incumbent on the court lo evaluate both versions iudicially give ressons why one and not the olher version is accepled. It is a misdireclion lo accept the one version and lhen hold that becuuse of that accepttnce per se the other version is unsustainoble."

The trial Judge considered the evidence before him and was persuaded by the prosecution evidence which he occepted os truthful. On page 10 of the Judgmenl, he held thus:

"Afler serious consideration of the proseculion evidence, lhe law involved and after due caulion to myself, I accepl as lruthful the evidence of lhe proseculion witnesses thal il is the appellanl who killed Hope Christine. In the circumslances, the defence of alibi raised by the accused person cannol sland. The proseculion has successfully destroyed it by ndducing evidence, which places him ot the scene of crime when the crime wos heing committed."

/l/e are unable tofauh the trial Judgefor hisfindings and conclusion as lhere was indeed ample prosecution evidence which pul the accused al the scene of crime and disproved lhe appellant's alibi. That evidence sulficiently destroyed the alibi."

We find that, in arriving at their decision, the Court of Appeal Justices were alive to the principles on alibi as laid out in Criminol Appeal No.02 of 1997, Bogere & Anor vs Ugunda. The Justices evaluated the appellant's evidence of alibi alongside the prosecution's evidence from PW2, PW9, and PW5 who placed the appellant at the scene of the crime. We find that they correctly came to the conclusion that the appellants defence of alibi crumbled in view of the testimonies of the prosecution that proved the appellant to have participated in the commission of the offence.

We therefore find no fault in the Court of Appeal's findings on ground l.

## Ground 2

The appellant faults the Court ofAppeal Justices for not deducting the period of 4 years, 3 months and 2 weeks that he spent on remand in accordance with this Court's decision in Rwabugande.

ln Criminal Appeal No.66 of 2016, Abelle Assuman vs. Uganda, this Court held that it is sufficient for cases decided before Rwabugande (supra) to demonstrate that the sentencing Court clearly showed that it has taken into account the period spent on remand before sentence as this was the Courl's position betbre this Court departed from its earlier decisions in Kizito Senkula vs. Uganda S. C. C. A No.24/2001; Kobuye Senvawo vs. Uganda SCCA No.2 of 2002; Katende Ahomed vs. Uganda S. C. C. A No.6 of 2004 and Bukenya Joseph vs. Uganda S. C. C. A No. I7 of 2010 which held thal "taking into consideration of lhe lime spent on remand does nol necessilate a senlencing Courl lo opply ^a malhemalical formula. "

It is only those cases that are decided after Rwabugande (supra) that should follow this Courts position of the law in Rwabugande made on 3'd of March 2017.

The Court of Appeal Judgment in the instant case was delivered on 3l't March 20l6,ayear before the position ofthe law changed in Rwabugande (supra). The Court of Appeal could not be bound to follow the decision in Rwabugande which was made after its decision.

The Court of Appeal Justices on confirming the trial Judge's decision fbund that the trial Judge had clearly considered the period spent on remand while sentencing. This was done in accordance to the Court's position then in Kizito Senkula (supra).

We find no fault in the Court of Appeal finding on the consideration of the period spent on remand.

The appellant also contended that both the trial Judge and the Court ofAppeal Justices did not properly consider the appellants mitigating factors.

In sentencing the appellant, the trial Judge stated:

"He is ofirst offender. However, he committed a grave offence. He ended Irfe of a young girl, just 18 years old in the most barhoric, brutal and merciless manner, A person who armed with a knife concealed in his waisl coat goes to another, stabs her, leaves knde embedded in the heart and disappears into thin air is o heartless beost unJil to enioy the spoils of his wickedness.

.,'.,':..

The best place for him is lotal conJinement, whether he is HIV positive or not. He has spent four years, 3 monlhs and two weeks on remond. I have taken that inlo account. The maximum senlence which the learned state attorney has called for is dealh, I am not inclined to poss a dealh sentence. He deserves a harsh and deleruenl custodial sentence, which others with similar inclination will leorn from. That harsh and delerrent custodiol sentence is lhirty (30) years imprisonment from lhe dote of conviction and sentence, loday. He is senlenced accordingly, that is, lo thirty (30) years imprisonment from loday."

In confirrning the trial Courl's sentence, the Courl ol Appeal Justices stated

"lil/e accepl counsel for the respondenl's contention lhat the appellant was convicled of murder which canies a murimum sentence of dealh under 5.189 ofthe Penal Code Act. The appellant wos sentenced to J0 years imprisonment which we Jind neither illegal nor was it passed on a wrong principle as to occasion a miscarriage of Justice. The lrial Judge took into consideralion the oggravaling faclors as well as the mitigating factors before passing the sentence which we Jind neither harsh nor ercessive. Therefore, we decline to inlerfere with it."

The sentence was given after due consideration ofthe mitigating and aggravating factors.

We find no fault in the sentencing process nor the sentence imposed by the High Court as confirmed by the Court of Appeal. Accordingly, ground 2 fails.

We therefore find no reason to interfere with the lower Court's concurrent decision on sentence as it was done in accordance with the law and due consideration of the circumstances of the case.

In the result, the appeal is hereby dismissed. The decision of the Court of Appeal is upheld.

29th November $2019$ Dated at Kampala this day.........

Brukah

Bart Katureebe **CHIEF JUSTICE**

Eldad Mwangusya JUSTICE OF THE SUPREME COURT

Ruby Opio-Aweri JUSTICE OF THE SUPREME COURT

.......................................

Richard Buteera JUSTICE OF THE SUPREME COURT

**Augustine Nshimye** AG. JUSTICE OF THE SUPREME COURT