[2021] UGCA 55

## THE REPUBLIC OF UGANDA IN THE COURT OF APPEAL OF UGANDA AT LIRA **CONSOLIDATED CRIMINAL APPEALS NO.139 OF 2015 AND NO.** 152 OF 2015

- 1. LABONGO WALTER - 2. OKELLO VICTOR - 3. OKANGA GODFREY - 4. OKELLO KAMILO - 5. OKIDI JOHN ORYEMA:::::::::::::::::::::::::::::::::::: **VERSUS**

### UGANDA:::::::::::::::::::::::::::::::::::

(Appeal from the decision of the High Court of Uganda sitting at Pader before Mutonyi, J in Criminal Session Case No. 606 of 2014)

# CORAM: HON. LADY JUSTICE ELIZABETH MUSOKE, JA HON. LADY JUSTICE HELLEN OBURA, JA HON. MR. JUSTICE REMMY KASULE, AG. JA

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

The appellants were indicted before the High Court with the offence of murder contrary to Sections 188 and 189 of the Penal Code Act, Cap. **120.** When the appellants were arraigned for trial, the $1^st$ appellant was convicted of murder basing on a plea bargain agreement and sentenced to 20 years imprisonment. The $2^{nd}$ , $3^{rd}$ , $4^{th}$ and $5^{th}$ appellants all pleaded not guilty. Upon conclusion of their trial, each of the 2^nd, 3^rd, 4^th and 5^th appellants was convicted of murder, and each was sentenced to 35 years imprisonment.

#### **Background**

The facts of this case as found by the trial Judge were that on the 17^th May, 2014 at Aluka West Ward in Pader District, the deceased called Oola Peter and other people had gone to their garden. The appellants, armed with deadly weapons like pangas, axes, clubs and spears, went to the said garden and attacked the deceased's group. The deceased tried to stop the attack but was seriously assaulted by the appellants' group. The other people of


the deceased's group, who were in the garden, were also attacked and injured. The attackers then fled from the scene. Subsequently, those injured in the deceased's group, including the deceased were taken to a nearby hospital for medical attention. The deceased died shortly upon arrival at the hospital.

The appellants were arrested and subsequently presented for trial in the High Court. As stated earlier, the 1^st appellant, in a plea bargain, pleaded guilty and was convicted and sentenced to 20 years imprisonment. The 2^nd, $3^rd$ , $4^th$ and $5^th$ appellants pleaded not quilty to the offence, and the matter proceeded for trial.

At trial, the prosecution adduced evidence of 4 witnesses to prove that the appellants participated in the murder of the deceased. These were Okwera Bosco (PW1), Okidi John (PW2) Ocayo Doreen (PW3), who all testified that they were part of the deceased's group in their garden, when they were attacked by the appellants. The prosecution also called as a witness, Detective Assistant Inspector of Police Agen Joseph, a police officer who visited the scene of crime shortly after the attack.

After the prosecution had closed its case, the $2^{nd}$ , $3^{rd}$ , $4^{th}$ and $5^{th}$ appellants, when put on their defences, all chose to make unsworn statements, in which each raised an alibi that they were not at the scene of the crime on the fateful day. The $2^{nd}$ , $3^{rd}$ , $4^{th}$ and $5^{th}$ appellants also called two witnesses including the $1^{st}$ appellant and Atoo Rose, a wife to the $1^{st}$ appellant who testified that the $2^{nd}$ , $3^{rd}$ , $4^{th}$ and $5^{th}$ appellants were not part of the persons who assaulted the deceased and that they did not appear at the scene of crime on the day the deceased was killed.

However, the trial Court believed the prosecution case, and found each of the appellants guilty of the offence as charged, and consequently convicted and sentenced them accordingly. Being dissatisfied with the trial Court's decision, the appellants now bring this appeal to this Court, on grounds formulated as follows:

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- 1. The learned trial Judge erred in law and fact when she convicted the $2^{nd}$ , $3^{rd}$ , $4^{th}$ and $5^{th}$ appellants on evidence of the prosecution which was insufficient to prove the appellants' participation in the offence; - 2. The learned trial Judge erred in law and fact when she rejected the $2^{nd}$ , $3^{rd}$ , $4^{th}$ and $5^{th}$ appellants' defence of alibi without the prosecution rebutting it beyond reasonable doubt, thereby occasioning a *miscarriage of justice;* - 3. The learned trial Judge erred in law and fact when she convicted the $2^{nd}$ , $3^{rd}$ , $4^{th}$ and $5^{th}$ appellants on prosecution evidence, which had major contradictions and deliberate falsehoods, thereby occasioning a *miscarriage of justice;* - 4. The trial Judge erred in law and fact when she entered a plea of guilty against the 1^st appellant without following the procedure for recording a plea of guilty laid down by the law, thereby occasioning a *miscarriage of justice;* - 5. The trial Judge erred in law and fact when she passed an illegal sentence against the appellants, when she failed to take into account the period spent by the appellants in lawful custody in accordance with Article 23(8) of the Constitution of the Republic of Uganda, 1995, thereby rendering the sentence a nullity; and - 6. The trial Judge erred in law and fact when she passed a manifestly harsh and excessive sentence of 20 years against the 1^st appellant, and 35 years against the $2^{nd}$ , $3^{rd}$ , $4^{th}$ and $5^{th}$ appellants thereby occasioning a gross miscarriage of justice.

The respondent opposed the appeal.

## **Representation**

At the hearing, the appellants were represented by Mr. Daniel Evans Olwoch, on State Brief; jointly with Mr. Opwonya on Private Brief, both learned

counsel. The respondent was represented by Ms. Joanita Tumwikirize, learned State Attorney in the Office of the Director Public Prosecutions. The appellants were not physically present in Court during the hearing, and could only follow the proceedings via video link from the Court to Lira Prison, where they were incarcerated. This was owing to the then active restrictions put in place by the Government to prevent the spread of the Covid-19 disease, including restrictions on movement of inmates from prison premises.

Counsel for both sides filed written submissions.

We have carefully studied the Court record, and considered the submissions of counsel for both sides, as well as the law and authorities cited in support thereof. We have also, where necessary considered other relevant law and authorities not cited.

We are alive to the duty of this Court, when sitting as a first appellate Court, which is to re-appraise the evidence adduced at trial and draw inferences therefrom, bearing in mind that this Court did not have the opportunity to observe the demeanor of witnesses at the trial. (See: Rule 30 (1) (a) of the Rules of this Court; and Kifamunte Henry Versus Uganda, SC Criminal Appeal No.10 of 1997, Bogere Moses Versus Uganda, SC Criminal Appeal No.1 of 1997).

Bearing in mind the above principles, we shall proceed to resolve the grounds of appeal. We shall address grounds 1, 2 and 3 jointly in as far as they relate to evaluation of evidence by the trial Court, then address ground 4 separately and conclude with grounds 5 and 6 jointly.

Regarding the offence of murder contrary to Section 188 and 189 of the Penal Code Act for which the 5 appellants were convicted, the prosecution had a duty to prove the following ingredients beyond reasonable doubt:

- Death of a human being Ĕ. - The death was unlawful ii. - The death was caused by malice aforethought III. - The accused participated in causing the death. iv.


From the evidence on record, it was not contested that the deceased Oola Peter was assaulted and seriously injured, which caused his death shortly after the attack. We are satisfied that the deceased was unlawfully and maliciously killed. The first three ingredients of the offence were never contested at trial and were agreed upon. What is contested is the participation of the appellants in maliciously causing the death of the deceased.

## Grounds 1, 2 and 3

- 1. The Learned trial Judge erred in law and fact when she convicted the $2^{nd}$ , $3^{rd}$ , $4^{th}$ and $5^{th}$ appellants on evidence of the prosecution which was insufficient to prove the appellants participation in the offence; - 2. The Learned trial Judge erred in law and fact when she rejected the $2^{nd}$ , $3^{rd}$ , $4^{th}$ and $5^{th}$ appellants' defence of alibi without the prosecution rebutting it beyond reasonable doubt, thereby occasioning a *miscarriage of justice;* - 3. The Learned trial Judge erred in law and fact when she convicted the $2^{nd}$ , $3^{rd}$ , $4^{th}$ and $5^{th}$ appellants on prosecution evidence, which had major contradictions and deliberate falsehoods, thereby occasioning a *miscarriage of justice;*

On these grounds of appeal, counsel for the appellants submitted that the injuries sustained by the deceased as stated in the Medical Report contradicted the prosecution evidence. It was counsel's submission that the prosecution witnesses implicated the appellants in the murder of the deceased due to a land dispute and thus had a motive to tell lies to Court.

Counsel made reference to the evidence of Okidi John (PW2) that the deceased was speared in the eye. It was counsel's view that this was a deliberate lie considering that this injury was not indicated in the postmortem report of the deceased.

It was counsel's submission that while each of the $2^{nd}$ , $3^{rd}$ , $4^{th}$ and $5^{th}$ appellants raised an alibi, the prosecution did not disprove the same. It was

counsel's view that the prosecution ought to have obtained independent evidence including phone conversation records, to disprove the appellants' alibi defences. It was counsel's submission that such evidence of telephone print-outs would have shown the exact locations of the appellants at the time the offence was committed.

In reply, counsel for the respondent submitted that PW1 knew all the appellants, who were all his relatives. Further, that PW1 and PW2 had been in the garden with the deceased on the fateful day, and the witnesses had seen the appellants during the attack in the garden. The incident took place at 9:00am and all the appellants were in possession of weapons and which they had used to hit the deceased. Counsel submitted that the appellants were well known to PW1 and PW2, to whom they were related by blood, and therefore there was no possibility of mistaken identity. In counsel's view, the appellants were placed at the scene of crime and their alibi defences, could, therefore, not stand.

Counsel further submitted that the conduct of the 3^rd appellant of going into hiding after the killing of the deceased, until he was traced and eventually arrested by police, was suspicious and tended to point towards his guilt. Further, that PW1 could not have been mistaken about the identity of the 2^nd appellant since they were related by blood and PW1 could not have been mistaken about the actions of the 5^th appellant whom he testified threw a spear at him and with whom PW1 had a physical exchange.

Counsel further submitted that the appellants admitted that they had a land dispute with the deceased. This, in his view, counts for sufficient malice aforethought to deal away with the deceased. The alibis that the appellants relied upon were false and the trial Judge properly addressed herself in as far as proof of malice aforethought was concerned.

We have considered the submissions on grounds 1, 2 and 3. These grounds related to the trial Judge's decision to convict the 2^nd, 3^rd, 4^th and 5^th appellants for the murder of the deceased. In reaching her decision, the trial Judge considered that the key prosecution witnesses (PW1 and PW2) knew the appellants well by appearance, name and where they lived. PW1 and

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PW2 were also blood relatives of the 2^nd, 3^rd, 4^th and 5^th appellants. Further, that the offence happened between 8:30am and 9:00am a time of the day when visibility was good. Upon evaluating the prosecution evidence and the alibi defence raised by each of the $2^{nd}$ to $5^{th}$ appellants, the trial Judge formed an opinion that the said appellants had properly been identified by the prosecution witnesses as the persons who had assaulted the deceased, leading to his death. She dismissed the alibi put up by each of the appellants as false and found that they had formed a common intention of attacking the deceased while in the garden, and had executed the common intention by attacking and murdering the deceased.

We note that Okwera Bosco (PW1) testified that on 17/05/2014, he was at the garden at Aluka West together with the deceased and others sowing millet, when at about between 8:30 am and 9:00 am, he saw the 5 appellants armed with spears, bows, arrows, clubs and axes, come into the garden. The deceased approached the appellants to ask them not to go any further into the garden, but the $1$ ^st appellant instead cut him on the head with an axe.

PW1's evidence on the participation of the $2^{nd}$ appellant during the attack was that the $2^nd$ appellant was known to him as a cousin to his mother. He identified the $2^{nd}$ appellant as one of the persons who made an attack on them at the garden. He testified that the $2^{nd}$ appellant had a club and a horn of an animal. Further, that the $2^{nd}$ appellant participated in the assault of the deceased by hitting the deceased with a club and that there after he blew the horn.

With regard to the 3^rd appellant, PW1 testified that he had an axe and a club during the attack. Further, that the 3^rd appellant participated in the assault of the deceased by hitting him with a club on the head. He testified that the 3^rd appellant was married in their home.

As for the 4^th appellant, PW1 testified that he knew him as an inhabitant of a neighboring village. He identified the 4th appellant as part of the group that had attacked them at the garden. The 4^th appellant was armed with a spear and a club. During cross examination, PW1 testified that the 4^th appellant speared the deceased in the left eye during the assault.

PW1 testified that he studied with the 5^th appellant at Owonya Primary School. He identified the 5^th appellant as one of the assailants and that he held a spear and a panga. During the assault, the $5^th$ appellant hit the deceased with a club. Further, that the 5^th appellant also threw a spear at PW1 who was trying to run away during the attack.

Okidi John (PW2) testified that the 2^nd appellant was his cousin, the 3^rd appellant was married to his niece called Lakot Christine and the 5^th appellant was known to him because he used to see him while he was staying at Olwangu. He further testified that he was also part of the group that was in the garden with the deceased at the time of the attack. Further, that while in the garden, they saw many people coming and the deceased went towards them to stop them. He identified all the 5 appellants as having been part of the attackers.

PW2 testified that he saw the 2^nd appellant hit the deceased with a club and was blowing the horn. Further that he saw the 3^rd appellant cutting the deceased with an axe. He testified that it was not true that the 3^rd appellant's wife (Lakot Christine) had been admitted at Kitgum Hospital at the time of the attack and that on the fateful day, she was among the people who went to the garden where the assault took place. He also testified that he saw the 4^th appellant spearing the deceased's eye during the attack and that he saw the $5^th$ appellant cutting the deceased with an axe.

Acayo Doreen (PW3) testified that the 2^nd appellant was her cousin, the 3^rd appellant was a son to the $2^{nd}$ appellant, the $4^{th}$ appellant was known to her as a person from the neighboring village and that they used to dance together and that the 5^th appellant was known to her as she used to see him going to school.

PW3 further testified that she was also in the garden at Aluka with the deceased and others when she saw the 4^th appellant leading people coming towards them. She implicated all the five appellants as having assaulted the deceased on the fateful day. She testified that the 2^nd appellant hit the deceased with an axe and started blowing the horn thereafter and that the spear which the 4^th appellant used to spear her on the leg was the same spear that he used to spear the deceased underneath the eye.

The prosecution also relied on the evidence of Detective Assistant Inspector of Police, a police officer who visited the scene of crime after the incident and found that the deceased had been taken to hospital. He testified that he found blood stains on the ground and blood stains on freshly cut sticks that had been left at the scene of crime. The same sticks were tendered in evidence at trial.

The Postmortem Report of the deceased indicated that the deceased had a cut wound on the head measuring $10*5*5$ cm at the temporal region and another measuring $5*5*2cm$ at the parietal region and occipital region measuring $3*2*2$ cm. The deceased was also reported as having massive brain damage with massive bleeding internally.

In their defence, each of the $2^nd$ to $5^th$ appellants raised an alibi and denied having participated in the assault of the deceased.

It was the $2^{nd}$ appellant's defence that on the fateful day, he did not go to the garden where the assault is said to have taken place. Further, while he was at his home nursing a cold as he suffers from asthma and tuberclosis. the $1$ ^st appellant, who is his son, informed him that while he and others had gone to the garden to check on the charcoal, a fight ensued thereat. He testified that he, together with a woman councilor called Lalam Grace took the 2^nd appellant to Police. Further, that his clan paid compensation to the family of the deceased and that the deceased's clan looted his home.

In his defence, the 3^rd appellant testified that on the fateful day at 7:00am, he left home to go and follow up with his wife who was at Kitgum Hospital. Upon reaching a place called Kabong B, he learnt that his wife had gone to Kabong A, and thus decided to turn back and go back home. On his way back home, he heard over the radio that the 1^st appellant, who was his brother was needed by police. Upon reaching home, he found that everyone had gone into hiding. He then found the 1^st appellant in the bush and advised him to report to Police. Further, that him and the $2^{nd}$ appellant took the $1^{st}$

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appellant to Bishop Flynn Secondary School where they called a one Lalam and she came with Police.

The 4^th appellant testified that early morning on the day when the deceased was assaulted, he went to the garden with his wife. At around 10:00 am, he received a phone call from the $1^{st}$ appellant, a son to the $2^{nd}$ appellant who was his brother, advising him to be careful because there was a fight that had resulted into injuries. Therefore, he went into hiding.

It was the $5^{th}$ appellant's defence that at 6:00am on the fateful day, he left home to tether his bull and to plough his garden. Between 9:30 and 10:00 am as he was working near the road, he heard people talking. Upon going to the road, he was told that there had been a fight at the scene of crime and that it was suspected that someone had been killed. He was therefore advised to go back home. Upon reaching home, he found that people had run away. He, therefore, also went into hiding for three days. He explained that the $1^{st}$ appellant was his cousin and the $2^{nd}$ appellant was his paternal uncle.

The defence also relied on the evidence of two witnesses to support their case. One of the witnesses to support the alibi of the $2^{nd}$ to $5^{th}$ appellants was the $1^{st}$ appellant.

The $1^{\ensuremath{\text{st}}}$ appellant testified that on the fateful day, he went to the garden where the assault took place with Ocaya Julio, Opwonya Benedict, Oola Peter and Ogenga Samuel. The 2^nd appellant was at home the entire time and that he was not there when the offence was being committed. Further, that the 3^rd appellant had also gone to follow up with his wife who was at Kitgum Hospital and that he saw him in the evening when the assault had already taken place. He further testified that he did not see the 4^th appellant for the entire day. He called the 4^th appellant on phone to inform him about what had happened after the offence had been committed. Further, that he did not see the 5^th appellant on the fateful day.

Atoo Rose (DW6) testified that the 2^nd appellant was her father in law, the $3^{\rm rd}$ appellant was her brother in law, the $4^{\rm th}$ appellant was her brother in law and the $5^th$ appellant was also her brother in law.

She testified that on the fateful day, she was at home with the $2^nd$ appellant. Further, that on the same day, the 3^rd appellant left home at around 7:00am to the hospital where his wife had been hospitalized for a week. At around 9:00 am, the $1^{st}$ appellant found her and her father in law at home and advised them to hide because there had been a problem at the garden.

The first complaint raised by counsel for the appellants was that the injuries sustained by the deceased as stated on the Postmortem Examination Report contradicted the prosecution evidence. We cannot accept this argument. From the Postmortem Report, the deceased had several injuries on the head, which correspond with the prosecution evidence that the deceased was assaulted by the appellants, on parts of his head, using weapons such as an axe and a spear. The Postmortem Report showed that the deceased had suffered massive brain damage and massive internal bleeding, which supports the prosecution evidence given by PW1, PW2 and PW3 who testified that they saw the appellants hit the deceased with several weapons, including sticks, some of which were found at the scene of crime by PW4 after the incident.

We have also considered the alibi raised by each of the $2^nd$ to $5^th$ appellants. While the $2^{nd}$ appellant testified that he stayed at home on the fateful day because he had a cold and was suffering from tuberculosis and asthma, all the 3 prosecution witnesses who knew him well testified that he was part of the group that participated in the assaulting of the deceased. They all testified that the $2^{nd}$ appellant hit the deceased with a club and that thereafter he blew the horn. While he said that he was sick with a cold and was suffering from tuberculosis and asthma and was thus at home at the time when the assault took place, his Medical Examination Report showed that he was not on any regular medication and did not have any chronic medical condition. He claimed that he hid after the incident because he feared the deceased's family. This was not conduct of an innocent man. We share the same sentiments with the trial Judge that, in such circumstances, if the $2^nd$ appellant feared for his life, he would have gone to police for protection.

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With regard to the 3^rd appellant, he testified that on the day that the deceased was killed, he left home at 7:00am to go and follow up with his wife who was hospitalized at Kitgum Hospital. PW2 and PW3 both testified that the 2^nd appellant's wife was actually one of the persons who found them at the garden where the deceased was assaulted. PW1, PW2 and PW3 all identified the 3^rd appellant as having been at the scene of crime. We take notice that PW1 and PW2 contradicted themselves on how the 3^rd appellant participated in the murder of the deceased. While PW1 testified that he saw the 3^rd appellant assaulting the deceased by hitting him with a club on the head, PW2 testified that he saw him cutting the deceased with an axe.

The law relating to contradictions and inconsistencies was stated in *Nasolo* Versus Uganda, Supreme Court Criminal Appeal No. 14 of 2000 as follows:

"The law governing inconsistencies in evidence was stated in Alfred Tajar Vs Uganda (1969) EACA Cr. Appeal No. 167 of 1969, to be that minor inconsistency unless the trial judge thinks it points to a deliberate untruthfulness does not result in evidence being rejected the same case also laid the principle that it is open to a judge to find that a witness has been substantially truthful even though he/she had lied in some particular respect".

We are convinced that basing on the circumstances of this case, PW1 and PW2 did not intentionally tell lies to the trial Court. We hold the view that any inconsistencies in the evidence of PW1 and PW2 was owing to the existence of tension during the attack, during which the victims were gripped with fear. But as noted by the trial Judge, there was evidence that the deceased was assaulted and as a result he suffered several cuts during the attack, as brought out in the testimonies of PW1 and PW2. It was especially, crucial, that the said witnesses implicated the 3^rd appellant, who they said had participated in the attack and had assaulted the deceased.

As for the 4^th appellant, we note that he testified that at the time of the assault, he was at his own garden with his wife until the $1^st$ appellant called him advising him to be careful. He subsequently chose to go into hiding. We

are convinced that the prosecution witnesses properly identified the 4^th appellant, who was well known to them, as being one of the persons who assaulted the deceased. They all pointed out that he had assaulted and injured the deceased with a spear.

We note the argument by counsel for the appellants that the prosecution ought to have obtained telephone print-outs in order to ascertain the actual location of the appellants at the time of the assault. While this information would have been important, we find that there existed other evidence such as the evidence of eye witnesses which was sufficient to place the 4^th appellant at the scene of crime.

The 5^th appellant also raised an alibi that at 6:00am on the fateful day, he left home to tether his bull and to plough his garden. He only got to know about the assault of the deceased from passersby between 9:30 and 10:00am. However, he was also identified by the prosecution witnesses who were at the garden where the assault took place. They also identified him among those who assaulted the deceased.

We find that the circumstances under which the appellants were identified were favorable and the chances that the prosecution witnesses could have been mistaken in identifying them are very unlikely. The appellants were well known to the said witnesses, the incident happened at 9:00am in the morning, which aided the witnesses' identification.

The principles on how a court should handle identification evidence were articulated in the case of **Abdala Nabulere & Anor Versus Uganda,** Supreme Court Criminal Appeal No. 9 of 1987 (unreported), where it was held:

"... The judge should then examine closely the circumstances in which the identification came to be made, particularly, the length of time the accused was under observation, the distance, the light, the familiarity of the witness with the accused. All these factors go to the quality of the identification evidence. If the quality is good, the danger of a mistaken identity is reduced but the poorer the quality, the greater the danger. In our judgment, 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 the identification evidence; provided the court adequately warns itself of the special need for caution..."

In the present case, we find that the $2^{nd}$ , $3^{rd}$ , $4^{th}$ and $5^{th}$ appellants, were well-known to PW1 and PW2. The attack had taken place at 9.00 a.m which aided PW1 and PW2's identification of the appellants as part of the attackers. The evidence of PW1 and PW2, which we find to have been cogent, tended to place the appellants at the scene of crime. We, therefore find no reason to fault the trial Judge's decision to convict the $2^{nd}$ , $3^{rd}$ , $4^{th}$ and $5^{th}$ appellants for the murder of the deceased. Grounds 1, 2 and 3 of the appeal are therefore disallowed.

## Ground 4

The trial Judge erred in law and fact when she entered a plea of guilty against the 1^st appellant without following the procedure for recording a plea of guilty laid down by the law, thereby occasioning a miscarriage of justice.

On this ground, counsel for the appellant submitted that the trial Judge did not follow the law as laid down in Adan vs. R [1973] EA 445 in recording a plea of guilty. As a result, there was no proper plea-taking for the $1^{\rm st}$ appellant. Counsel submitted that the trial Judge ought to have recorded the plea of guilty in the $1^{\rm st}$ appellant's own words, read the facts to the appellant and then and had the facts as so read recorded on the Court Record. In counsel's view, failure by the trial Judge to follow the principles as laid down in the **Adan case (supra)** was an illegality that rendered the trial a nullity.

Were this Court to find that the trial of the $1^st$ appellant was a nullity, counsel submitted that in view of the fact that the appellant has spent over 7 years in prison, a retrial would serve no meaningful purpose and would instead prejudice the $1$ ^st appellant. Therefore, he prayed this Court to order for the $1^st$ appellant to be released immediately.


Furthermore, counsel contended that there was a real likelihood that the 1^st appellant was forced/improperly led to admit the offence of murder for fear that his home would be destroyed by the people who lived in his village.

Counsel for the respondent did not file submissions in reply to this particular ground of appeal.

We note that in Adan vs. R [1973] 1 EA 445, the Court articulated what it referred to as a desirable practice to be followed by a trial Court, before convicting an accused person who has pleaded guilty to a charge. The Court stated:

"When a person is charged, the charge and the particulars should be read out to him, so far as possible in his own language, but if that is not possible, then in a language which he can speak and understand.

The magistrate should then explain to the accused person all the essential ingredients of the offence charged. If the accused then admits all those essential elements, the magistrate should record what the accused has said, as nearly as possible in his own words, and then formally enter a plea of guilty. The magistrate should next ask the prosecutor to state the facts of the alleged offence and, when the statement is complete, should give the accused an opportunity to dispute or explain the facts or to add any relevant facts. If the accused does not agree with the statement of facts or asserts additional facts which, if true, might raise a question as to his guilt, the magistrate should record a change of plea to "not guilty" and proceed to hold a trial. If the accused does not deny the alleged facts in any material respect, the magistrate should record a conviction and proceed to hear any further facts relevant to sentence. The statement of facts and the accused's reply must, of course, be recorded.

The statement of facts serves two purposes: it enables the magistrate to satisfy himself that the plea of guilty was really unequivocal and that the accused has no defence and it gives the magistrate the basic material on which to assess sentence. It not infrequently happens that an accused, after hearing the statement of facts, disputes some

particular fact or alleges some additional fact, showing that he did not really understand the position when he pleaded quilty: it is for this reason that it is essential for the statement of facts to precede the conviction."

The principles as articulated in the Adan case (supra) were commended to be followed by trial Courts when handling a plea of guilty. In the present case, the record of proceedings taken at the trial when the $1^st$ appellant pleaded guilty and was convicted accordingly indicate as follows:

"State: My Lord, I have witnesses in this case and ready to proceed," but before we proceed with the hearing the defence and the prosecution have reached a plea bargain agreement in respect of A1. He voluntarily agreed to plead quilty to the charge of murder and 20 years imprisonment inclusive of the period on Remand. I tender the said agreement for review and endorsement of this court.

Ladwar Walter for accused: That is the agreed position in respect of A1. I have explained to the accused and has agreed to all the contents and has voluntarily agreed and signed on the form.

Tabu Benson: A brother to the deceased. We are agreeable to 20 years, imprisonment.

*Court: Tabu Benson spoke on behalf of the family members who were* in court, 8 in number:

Court: A1 is convicted and sentenced to 20 years period spent a remand inclusive as per the executed plea bargain Agreement dated 02/04/2015" sic.

On the surface it would appear that the $1^st$ appellant's plea of quilty\_was properly made. However, counsel for the $1^st$ appellant challenged the said plea on grounds that the trial Court did not follow the principles articulated in the Adan case (supra) when it convicted the $1^st$ appellant and there remained a danger that the plea was not made knowingly and voluntarily. We note that the $1$ ^st appellant was represented by counsel at the time of plea taking. Counsel for the 1^st appellant informed the Court that the

implications of plea bargaining had been explained to the $1^st$ appellant before he signed the plea bargain form.

We note that at the time of the trial in 2015, the High Court had started to implement the then informal plea bargaining process. This was a time just before the **Judicature** (Plea Bargain) Rules, 2016, which govern plea bargaining in criminal trials had been made. It is worth stating, however that at the time, there existed a mechanism by which plea bargain agreements could be executed between the prosecution and an accused person. This mechanism, seems to have been used in the present case.

In the present case, it is our view, that the appellant decided to plead quilty voluntarily and knowingly, and that in choosing to do so, the $1^st$ appellant had been sufficiently guided by his advocate about the implications of plea bargaining. At page 15 of the record, counsel for the 1^st appellant told Court that he had explained the contents of the plea bargain agreement to the 1^st appellant, who had voluntarily agreed to the terms of the agreement and also voluntarily endorsed it by signing the plea bargain form.

We are further of the view, that the aim of the safeguards articulated in the Adan case (Supra), which is to ensure that an accused person who enters a plea of guilty does so knowingly and voluntarily was not compromised in the present case. This is because the $1^st$ appellant was well guided by his advocate before he executed the relevant plea bargain dated 2^nd April, 2015 in which he agreed to plead guilty. We also note that the $1^st$ appellant testified at the trial and admitted that he had participated in the attack on the deceased person. This also fortifies this Court's conviction that the 1^st appellant's plea of guilty was voluntary. In all circumstances of the case, we find that the $1^{st}$ appellant pleaded guilty to the offence of which he was convicted, voluntarily and knowingly, and that the learned trial Judge was justified to convict him on that plea of quilty.

We, therefore, disallow ground 4 of the appeal, too.

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## Grounds 5 and 6

The trial Judge erred in law and fact when she passed an illegal sentence against the appellants, when she failed to take into account the period spent by the appellants in lawful custody in accordance with Article 23(8) of the Constitution of the Republic of Uganda, 1995, thereby rendering the sentence a nullity; and

The trial Judge erred in law and fact when she passed a manifestly harsh and excessive sentence of 20 years against the $1$ ^st appellant, and 35 years against the $2^{nd}$ , $3^{rd}$ , $4^{th}$ and $5^{th}$ appellants thereby occasioning a gross miscarriage of justice.

As regards ground 6, counsel for the appellants submitted that it was a constitutional requirement for the trial Judge to take into account the period each of the $2^{nd}$ , $3^{rd}$ , $4^{th}$ and $5^{th}$ appellants had spent in lawful custody, including the period spent in police custody before sentencing in the trial Court. It was counsel's submission that the trial Judge only took into account the period spent on remand, during trial and she disregarded the other period spent in lawful pretrial detention after arrest while they were detained at the police station. Counsel contended that this rendered the sentences passed by the trial Judge illegal and the same ought to be set aside.

On ground 5, counsel submitted that the respective sentences that the trial Judge imposed on the appellants, of 20 years imprisonment on the $1^{\rm st}$ appellant and 35 years imprisonment on the 2^nd, 3^rd, 4^th and 5^th appellants were manifestly harsh and excessive. Counsel contended that the 35 years and 20 years terms of imprisonment given by the trial Judge ought to be imposed only in cases where convictions are for offences committed through meticulous planning, prolonged premeditation and committed against a weak and vulnerable person. Counsel referred to the case of Akbar Godi vs. Uganda, Supreme Court Court Criminal Appeal No. 13 of 2013 where the Supreme Court imposed a sentence of 20 years imprisonment although the appellant had killed the deceased with premeditation.

In counsel's view, the most appropriate sentences in the circumstances of this case would be a sentence of 10 years imprisonment for each appellant.

Counsel urged the Court to consider that the death of the deceased came as a result of mob action which had been induced by a land dispute involving the appellants and the deceased. Further, the appellants were first time offenders with no prior criminal record. Counsel invited this Court to set aside the respective sentences imposed by the trial Judge on each appellant and substitute sentences of 10 years imprisonment for each of the 1^st, 2^nd, 3^rd, $4^th$ and $5^th$ appellants.

As to ground 6, counsel for the respondent conceded that the trial Judge did not take into consideration the period the 2^nd, 3^rd, 4^th and 5^th appellants had spent on remand prior to sentencing, which rendered the sentences illegal and the same should be set aside by this Court. Counsel submitted that this Court is authorized by Section 11 of the Judicature Act, Cap. 13 to impose a fresh sentence on the $2^{nd}$ to $5^{th}$ appellants in the circumstances. In determining a fresh sentence, counsel urged this Court to consider the aggravating factors, especially the fact of the violent manner in which the appellants assaulted and killed the deceased. Counsel, prayed for this Court to sentence the appellants to 34 years imprisonment, and cited the authority of Mpagi Godfrey vs. Uganda Supreme Court Criminal Appeal No. 63 of 2015 to guide this Court in sentencing the appellants.

It is trite law that this Court can only interfere with the discretion exercised by the lower Court in imposing sentence where the sentence is manifestly excessive or so low as to amount to a miscarriage of justice or where the court ignores to consider an important matter or circumstances which ought to be considered while passing sentence or where the sentence imposed is wrong in principle. (See Kiwalabye Bernard vs. Uganda, Supreme Court Criminal Appeal No.143 of 2001).

With respect to the challenge to the sentence imposed on the $1^st$ appellant, we note that the $1^{\ensuremath{\text{st}}}$ appellant was sentenced following a plea bargain. In sentencing the $1$ ^st appellant, the learned trial Judge stated at page 15 of the record as follows:

"A1 is convicted and sentenced to 20 years period spent a (sic) remand *inclusive as per the executed plea bargain agreement dated* 02/04/2015."

We therefore find that the learned trial Judge took into account the period spent by the $1^st$ appellant on remand as she was enjoined to do under Article 23 (8) of the 1995 Constitution. We further find that the sentence of 20 years imprisonment imposed on the $1^st$ appellant was neither manifestly harsh nor excessive. We are alive to the fact that in previously decided cases of murder, a sentence of 20 years imprisonment is considered to be at the lower end of sentences usually imposed in murder cases. In Akbar Godi vs. Uganda, Supreme Court Criminal Appeal No. 03 of **2013**, a sentence of 20 years imprisonment was imposed by the Supreme Court on an appellant who had shot and killed his wife. In some murder cases, for example, in **Kyabire Patrick and 3 Others vs. Uganda, Supreme Court Criminal Appeal No. 62 of 2018**, the death sentence has been upheld as an appropriate sentence. In that case, the appellants had committed multiple murder of four persons in a gruesome manner which involved burning one person, and hacking the other three to death using a panga.

In view of the sentencing range for murder cases, we find that the sentence of 20 years imposed on the $1^st$ appellant was neither harsh nor excessive, and we uphold it.

We now move on to consider the challenge to the respective sentences of 35 years imprisonment imposed on each of the $2^{nd}$ , $3^{rd}$ , $4^{th}$ and $5^{th}$ appellants. We note that as she imposed those sentences, the trial Judge took into consideration that the culture of murdering human beings with a view of compensating the bereaved family was prevalent in the Acholi Sub-Region, and this was unconstitutional. She then formed an opinion that this called for a deterrent sentence so that others could refrain from engaging in such kind of behavior. She then considered that the $2^{nd}$ to $5^{th}$ appellants acted in a monstrous manner when they killed the deceased. The appellants had also not shown any remorse for their role in the killing of the deceased. The learned trial Judge, however, did not take into consideration, the period

spent by the $2^nd$ to $5^th$ appellants on remand, and counsel for the appellants has challenged the legality of the sentences imposed following that omission.

We have perused the Court record, and find that as contended for the appellants, the trial Judge omitted to take into consideration the period that the $2^{nd}$ , $3^{rd}$ , $4^{th}$ and $5^{th}$ appellants had spent on remand prior to their sentencing, as she was obligated to do under Article 23 (8) of the 1995 **Constitution** which provides that the period spent by a convict in lawful custody prior to sentencing must be taken into account in imposing a sentence on the person. Accordingly, the sentences imposed on the 2^nd, 3^rd, $4^th$ and $5^th$ appellants are illegal and we set them aside.

Pursuant to **Section 11 of the Judicature Act, Cap. 13** which gives this Court the powers of the High Court to determine a fresh sentence, when it sets aside the sentence imposed by the High Court, we now proceed to determine an appropriate sentence for the $2^{nd}$ , $3^{rd}$ , $4^{th}$ and $5^{th}$ appellants. Considering all the factors on record, we find that a sentence of 25 years imprisonment for each of the $2^{nd}$ , $3^{rd}$ , $4^{th}$ and $5^{th}$ appellants, is appropriate.

We now proceed to deduct and ascertain the period spent by each of the $2^{nd}$ , $3^{rd}$ , $4^{th}$ and $5^{th}$ appellants in lawful custody from their arrest until sentencing. From the evidence on record, it is difficult to ascertain when the 2^nd appellant was arrested, as the relevant Police Form 24 is silent as to when the $2^{nd}$ appellant was arrested. The $2^{nd}$ appellant also did not, in his unsworn statement, give the date of his arrest. The arresting officer was not brought to testify for the prosecution. This is the case for the 3^rd, 4^th and 5^th appellants as well.

In those circumstances, and although, the $2^{nd}$ to $5^{th}$ appellants testified that they had been arrested some days after the murder of the deceased, we have found it safe to consider the date on which the deceased was murdered as the presumptive date for the arrest of the $2^{nd}$ to $5^{th}$ appellants. The date which the deceased was murdered is the only ascertainable date. Accordingly, we take it that each of the $2^{nd}$ to $5^{th}$ appellants, was arrested on $17^{th}$ May, 2014. This means that at the time of sentencing on $20^{th}$ April, 2015, each of the 2^nd to 5^th appellants had been in lawful custody for a period

of 11 months and 3 days. When the said period is deducted from the sentences of 25 years imprisonment imposed by this Court, each of the 2^nd, $3^rd$ , $4^th$ and $5^th$ appellants shall be sentenced to 24 years and 25 days imprisonment to run from 20^th April, 2015, the date of their conviction by the trial Court.

In conclusion, the $1^{st}$ appellant's appeal is dismissed, while the $2^{nd}$ , $3^{rd}$ , $4^{th}$ and 5^th appellants' appeals succeed in relation to sentence but fail as to conviction.

This is a majority decision (Musoke, JA and Kasule, Ag. JA). Obura, JA did not agree with part of the decision and has not signed the judgment of the Court.

Dated at Lira this $25$ day of $August$ 2021.

**Elizabeth Musoke** Justice of Appeal

**Hellen Obura**

Justice of Appeal

**Remmy Kasule** Aq. Justice of Appeal