[2024] UGCA 18

### THE REPUBLIC OF UGANDA

### IN THE COURT OF APPEAL OF UGANDA AT FORT PORTAL

lCoram: Egonda-Ntende, Bamugemereire & Mugenyi, JJA]

## CRIMINAL APPEAL NO. 165 of 2019

(Arisingfrom High Court Criminal Session Case No.0055 of 2016 at Masindi)

#### BETWEEN

| . LOgi -JUma Ibrahim AliaS ACOki:--::::::::-::::Appellant | NO.l | |-------------------------------------------------------------------|-----------------| | i as Atoo----:::::::::::::::::Appellant<br>' Anwangkhan Rashid al | No. 2 | | . Ogwoka Moses al ia s Muzge::::::::::::::::::::::Appellant | No. 3 | | . Wathum Kasim | Appellant No.4 | | Odongo Angwankan Mudhzi111::::::::::::::::::::::: | Appellant No. 5 | | . Angeango Beffy::::::::::::::::::::::::::::Appellant | No. 6 | | Lenga Godfrey | llant No. 7 | | :::_-::::-:--:::::::::::::::::Appellant<br>Orom Geoffrey | No. 8 | | Balindwa Simon | ppellant No. 9 | | - B idongo Charles::::-:::::::-::::::::::::::Appellant | No. I 0 | | Anena Grace | llant No. 1 I | | Balindwa Margret | ppellant No.l2 | | . Bidongo Joyce:::::::::::::-:::::::::::::Appellant | No. I 3 |

#### AND

| Respondent | |------------| | |

(An appeal against the Judgement of the High Court of Uganda [Mugenyi, J] at *Masindi delivered on 16^th August 2019*)

# JUDGMENT OF THE COURT

## **Introduction**

- The appellants were indicted of the offences of murder contrary to sections $[1]$ 188 and 189 of the Penal Code Act and attempted murder contrary to section 204 of the Penal Code Act. The particulars of count 1 were that on 14^th April 2015 the appellants and others still at large at Kyababyara village in Masindi District murdered Oromcam Samuel. The particulars of count 2 are that the appellants and others still at large at Kyababyara village in Masindi District unlawfully attempted to cause the death of Onega John. The particulars of count 3 are that the appellants and others still at large at Kyababyara village in Masindi District unlawfully attempted to cause the death of Christopher Opunoga. - The learned trial judge, on 16^th August 2019, convicted A1, Logi-Juma $\lceil 2 \rceil$ Ibrahim alias Acoki, A2, Anwangkhan Rashid alias Atoo; A3, Ogwoka Mosess alias Muzee; A6, Angeango Betty; A10, Bidongo Charles; A11, Anena Grace and A13, Bidongo Joyce of count 1 of murder; and sentenced them to 40 years' imprisonment. 12 appellants, A1, A2, A3, A4, A5, A6, A7, A8, A9, A11, A12 and A13 were convicted of count 2. 3 appellants, A2, A3, and A5 were convicted of count 3. All appellants convicted of count 2 and 3 were sentenced to 20 years imprisonment on each count. The appellants with more than one sentence were to serve the sentences consecutively. - Appellants No.2, (Anwangkhan Rashid alias Atoo); No.3 (Ogwoka Moses $[3]$ alias Muzee); No.5, (Odong Anwangkan Mudhaziru); and No.10 (Bidongo Charles) appeal against sentence only which they contend was manifestly harsh and excessive. - Appellants No.1, 4, 6, 7, 8, 9, 11, 12 and 13 appeal against their convictions $[4]$ on counts 1, 2 and or 3 as well as against the sentences imposed. The appeals $\frac{1}{2}$ against conviction are on the sole ground that the learned trial judge did not properly evaluate the evidence on record regarding the participation of the

appellants and thereby reached a wrong decision to convict the appellants. The appeal against sentence is on the ground that the sentence was manifestly harsh and excessive.

$[5]$ The respondent opposed the appeal.

## **Submissions of counsel**

- $[6]$ At the hearing of this appeal by Mr. Sam Oola, Senior Assistant Director of Public Prosecutions, in the Office of the Director, Public Prosecutions appeared for the respondent while Mr. Simon Kasangaki for the appellants was absent. We directed the Registrar to assign the appellants an advocate on state brief, who was to interview the appellants, receive instructions from them and file the necessary documents. On 16^th November 2023, Ms Angella Bahenzire, filed a notice of instructions and amended memorandum of appeal. Both counsel filed written submissions. - $[7]$ Ms Angella Bahenzire restated the duty of the first appellant court as set out in Oryem Richard v Uganda [2003] UGSC 30. Counsel for the appellants submitted that this court was empowered by section 132 (1) of the Trial on Indictments Act to interfere with a sentence passed by the trial court. - [8] The appellants contest only their participation in the murder of Oromcan Samuel and the attempted murder of Onega John and Christopher Opunoga. She submitted that the prosecution evidence was full of inconsistences that are significant enough to cast doubt on the credibility of this evidence, hence destroying the inference of the appellant's participation in the commission of murder and attempted murder. - $[9]$ Counsel for the appellants contended that the evidence of PW1 is contested, specifically the circumstances under which she identified the appellants. PW1 testified that she spent 20 minutes at the scene of the crime and hid herself in cassava plantation, which was about 70 meters away from the scene of the crime. That while there, she saw the appellants and PW3 lying down in critical condition and bleeding.

- [10] Counsel for the appellants argued that it was not possible that the PWI was able to identiff the perpetrators who were armed with spears, panga, sticks, bows, and arrows and observe the injuries occasioned to the victims within a period of 20 minutes. She further argued that the scene of the crime was such a frightening sight for PWl to be present and identifu the perpetrators. She contended that PW2, being overwhelmed by the incident, fled the scene of the crime when they were only five people. - [11] She stated that the scene of the crime comprised of chaos of the crowd, armed with dangerous weapons, and that PWl, who was 70 meters away, could not identifo the perpetrators. That the cassava plantation where she hid wasn't a conducive environment for identification. - ll2) Counsel for the appellants submitted that PWl and PW4 gave contradictory evidence. That PWl stated that the appellants no. 6, 13, and Mauwa pulled the deceased off the motorcycle and beat him to death. While PW4 stated that he met the deceased on the way and wamed him not go to the scene of the crime, but the deceased insisted. That the deceased got off the motorcycle, paid the rider, and headed to the scene of the crime, where he was confronted by appellants no. 4, 13, and Bichala. She contended that there was also ^a contradiction on who killed the deceased, whether it was the appellants no. 4 and l3 or Bichala or Mauwa, or appellant no. 6. - [3] She further contended that the evidence of PWI and PW3 was contradictory. PW1's evidence was to the effect that she found her father-in-law (PW3) lying down in a critical condition while bleeding. PW3 on the other hand stated that after he was cut, he raised his arms to protect himself from further cuts, PW5 found him seated and took him to the hospital. - [4] She relied on Kato Kaiubi Godfrey v. sanda l202ll UGSC 57. where the court stated that grave inconsistencies, unless satisfactorily explained, will result in evidence being rejected, and minor inconsistences will not usually have an effect unless the court thinks they point to deliberate untruthfulness. For the submission that the prosecution gave no explanation for the grave inconsistencies and prayed to this court to reject the prosecution's evidence on the participation of the appellants.

- [15] On ground 2, counsel for the appellants referred to Kyalimpa Edward ^v Usanda Supreme Court Criminal Appeal No. 10 of l995(unreported) to support the proposition that this court can interfere with the sentence imposed by the trial court where the sentence is illegal or manifestly harsh and excessive and or some material fact was overlooked by the trial court. She also referred to Aeuipi Isaac alias Zako v Ueanda Criminal Appeal No. 106 of 2012 (unreported) where on appeal a sentence of 26 years' imprisonment for murder was reduced to l8 years' imprisonment. She prayed that this appeal be allowed and the sentences reduced accordingly. - [16] Mr. Sam Oola for the respondent relied on Bogere Moses & Anor 1998 UGSC 22 and Abdalla Nabulere & 2 Ors v U r978 ul, on how evidence of identification should be handled. He submitted that the conditions were conducive and favourable for proper identification. - U7l He submitted that PWl had known the appellants for more than l0 years. They lived on the same village. She was 100 meters away from the scene of the crime. The incident happened at 4:00 p.m. He further submitted that PWl saw the appellants armed with pangas, sticks, bows, and arrows. While hiding in the cassava plantation, she saw appellants no.6, 13, and Mauwa pull the deceased from the motorcycle. Appellants No. 1,2,3 and 4 cut the deceased, while appellants 6, 10 and I I beat the deceased with sticks. - [18] Counsel for the respondent stated that PW4 saw appellants no. 1,4, l0 and Bichala grab and beat the deceased. That appellant no.l had a panga, appellants no. 4 and 10 had bows and arrows, and the appellant no 13 had a stick. PW4 confirmed in cross-examination the deceased was pulled off the motorcycle by four people. Counsel for the respondent contended that PW4 was in fear while recording the police statement and not in right senses, which brought about the inconsistencies. - [19] He further contended that PW4 could have forgotten due to a lapse of time between when the incident happened and the trial in court. Counsel for the respondent submitted that the contradictions in the prosecution evidence adduced by PWl, PW3, and PW4 were minor and did not point to deliberate lies or untruthfulness. He submitted that the evidence of the PW4 was consistent with the PWl's evidence in material facts and provided some

corroboration. He further submitted that the evidence of PWI was uncontroverted during cross-examination.

- [20] On the count of attempted murder, counsel for the respondent submitted PW1, PW2, PW3 and PW5 had known the appellants for more than l0 years as they lived on the same village. He contended that the incident happened at 4:00 p.m. in broad day light and lasted for about 5 minutes. - l21l He submitted that PWl identified the 12 appellants who were armed with pangas, spears, bows, arrows, and sticks before going into hiding. He contended that PWI found PW3 lying down with bleeding wounds and followed the assailants as they were leaving PW3's home. He argued that the evidence of PW3 that he was seated was a minor contradiction. - L22l PW2 identified appellants no. l, 2,3,4 and 5 out of the crowd. That she saw the appellant no.l cut PW3 on the head, mouth, and shoulders. That PW3 testified that he was attacked by appellants no. 1,2,3,4,5, and l3 and cut with pangas on the head, mouth, shoulders, chest, ribs, and hands. PW3 further testified that appellants no.7,8,9, 11 and 12 beat him using sticks and maintained in cross-examination that he recognized the appellants before they attacked him. - l23l He stated that it was the evidence of PW5 that appellants no. 1,2,3,4 and 5, had pangas, while appellants 6 and 13 had sticks. He saw appellants no. 1,2,3,4 and 5 cut PW3, and appellant no. 11 beat him with sticks. He concluded by submitting that the appellants were properly identified by PW2, PW3, and PW5 and placed at the scene of the crime. - l24l Counsel for the respondent submitted that count 3 was proved by the evidence adduced by PW3 and PW5. He contended that the evidence of PW5 was sufficiently corroborated with the testimony of PW3. He submitted that the two witnesses had known appellants no.2,3 and 5 for more than 10 years and the incident took place at 4:00 p.m. in broad day light which ruled out the possibility of mistaken identity. - l25l It was the submissions of counsel for the respondent that the appellants were acting in concert of common intention as part of large group. He relied to Section 20 of the Penal Code Act which provides for the doctrine of common

intention and Kisegerwa & Anor v Uganda [1978] UGSC 6 for his submission.

- Turning to ground 2, Counsel for the respondent submitted that the principles $[26]$ under which the appellate court can interfere with the sentence imposed by the trial court are set out in Rwabugande Moses V Uganda [2017] UGSC 8, Kyalimpa Edward v Uganda Supreme Court Criminal Appeal No. 10 of 1995(unreported), Kamya Johnson Wavamuno v Uganda [2018] UGSC 12 and Kiwalabye Bernard v Uganda Supreme Court Criminal Appeal No. 143 of 2001 (unreported). - [27] Counsel for the respondent submitted that the sentences imposed by the trial judge were legal and should be maintained. He contended that the trial judge considered the period each of the appellants spent on remand and deducted it from the sentences. He submitted that, considering the circumstances in this case and the aggravating and mitigating factors, the sentence of 40 years' imprisonment imposed against appellants no. 1, 2, 3, 4, 6, 10, 11 and 13 for the offense of murder is appropriate. Counsel was of the view that a sentence of 20 years' imprisonment for the counts of attempted murder was appropriate against the appellants. - [28] He submitted that the appellants repeatedly hacked the deceased on the head and shoulders and covered his body with grass. He further submitted that the attack on PW3 and PW5 was violent, gruesome, and barbaric. - $[29]$ He referred to cases where this Court and the Supreme Court upheld similar and more serious sentences, including Kaddu Kavulu Lawrence v Uganda [2019] UGSC 19, Karisa Moses v Uganda Supreme Court Criminal Appeal No. 23 of 2016(unreported), Kato Kajubi Godfrey v Uganda [2021] UGSC 57, Juma Joshua Aka Sulaiman v Uganda [2018] Supreme Court Criminal Appeal No. 87 of 2021 (unreported), Bashasha Sharif v Uganda [2019] UGSC 65, Otuba Patrick &Anor v Uganda [2017] UGSC 45 and Ssemanganda Sperito &Anor v Uganda Court of Appeal Criminal Appeal No. 456 of 2016(unreported). He prayed that this court upholds the conviction and sentence and dismiss the appeal.

## Analysis

- t30] This is a first appeal. It is our duty to subject the evidence on record to a fresh appraisal for this court to reach its own conclusions of fact and law, considering, of course, that we did not have the opportunity to hear and see the witnesses testifr in person. See Rule 30 of the Judicature (Court of Appeal Rules) Directions S.l 13-10; vU 199 UGSC Kifamute Henrv v Ueanda [1998] UGSC 20. - [3 1] We shall do so.

# Appeal against Conviction

- 132) The appellants contended that the trial judge did not evaluate the evidence on record regarding the appellants' participation in the commission of the crimes. - [33] PWI Canfua Doreen stated in her testimony she knew the appellants as her village mates for about l0 years. That on l4th April 2015 at around 4:00 p.m., she heard PW2 making an alarm. PWI went to the home of PW2 and found appellants no. 1, 2,3,4,5,6,7,8,9, 10, ll,12 and 13 and others at large armed with pangas, bows and arrows, spears and sticks. PW3 was lying down bleeding with wounds on his body. He had a cut on the forehead, left limb and hand. That the appellants threatened to kill the whole family which scared PWl. PWl run away and hid herself in the cassava garden which was about 70 meters from the scene of crime and observed whatever transpired. - 134) The appellants moved towards the road and met the deceased on a motorcycle. The appellants no. l, 13 and Mauwa pulled the deceased off the motorcycle while appellants no. 1, 2, 3,4, Juma, and Onen cut the deceased with pangas and appellants no. 6, 10, 11, Mauwa, Omani and Juma beat him with sticks. After killing him, they pulled his body and hid it under a Banya tree, covering it with grass. PW1 stated that the appellants spent 15 minutes at the scene of crime. She further stated that PW5 took PW3 to the hospital on a motorcycle. - t35] Upon cross examination, PWI stated that she saw appellants 6 and 13 pull the deceased from the motorcycle while hiding in the cassava plantation. - [36] PW2 Tofuwa Joyce, also in her testimony, stated that she knew the appellants who were neighbours for about 10 years. On April 14,2015, at around 4:00 p.ffi., while at home with PW3, appellants no. 1,2,3,4 and 5 who were armed with pangas cut PW3 on the head, mouth, and shoulders and beat him with sticks in the ribs. She made an alarm which attracted PWI and PW5 among others. PW5 found PW3 laying down and stopped the assailants from cutting him, but appellant no. 5 cut him on the head. She got scared and hid herself in the bush. - 137) PW3 Onega John stated that he knew the appellants as his village mates for more than I 0 years. On April l4th, 2015 at 4:00 p.ffi., appellants no. 1, 2, 3, 4, 5 and l3 attacked him while at his home with pangas, spears, bows, arrows, and sticks. Appellants no.1,2,4 and 5 cut him on the head, chest, mouth, both shoulders, and ribs. Appellants no. 7 ,8, 9.1 1, and 12 beat him with sticks. - [38] On cross-examination, PW3 stated that PW5 found him seated trying to defend himself from the appellants. He further stated that PW5 got ^a motorcycle and took him to the hospital. - [39] PW4 Cwinyi Alex, stated that he knew the appellants as residents of his village. On April 14,2015 he heard an alarm from PW3's home. As he was walking there he met the deceased on the motorcycle and advised him not to reach at the scene of crime. However, the deceased insisted and headed to the scene of crime. That the deceased was confronted by appellants no.4, 10 and 13. The appellant no.l grabbed the deceased and beat him. That appellant no. t had apanga, appellants no.4 and 10 had bows and arrows and appellant no 13 had a stick, which she used to beat the deceased. PW4 stated that the incident took place at around 5:00 p.m. and the beating of the deceased lasted for about l0 minutes. He stated that the body of the deceased was placed under a banya tree and had injuries on the head. - [40] Upon cross examination, PW4 stated that he saw appellants no. l, 4 and 13 at the scene of crime beat the deceased. He further stated that the deceased was pulled off the motorcycle by four people. He contended he wasn't in his right senses at the time he was recording the statement because he was afraid as he had never seen a dead body.

- [41] PW5, Onimikuma Chris Punoga, stated that he knew the appellants as residents of his village. On April 14, 2015, he saw the appellant no.1 go to the home of PW3, and followed him. He saw people cutting PW3 with pangas. When he asked why they were cutting PW3, appellants no 3 and 5 cut him on the left hand, the appellant no.5 cut him on the right thumb, and the appellant no.2 cut him on the ear and head. That appellants no. 1, 2, 4 and 5 had pangas, $\frac{1}{2}$ , $\frac{1}{2}$ , $\frac{1}{2}$ , $\frac{1}{2}$ , $\frac{1}{2}$ , $\frac{1}{2}$ , $\frac{1}{2}$ , $\frac{1}{2}$ , $\frac{1}{2}$ , $\frac{1}{2}$ , $\frac{1}{2}$ , $\frac{1}{2}$ , $\frac{1}{2}$ bows and arrows. Appellants no. 6 and 13 were holding sticks. Appellants no. 1, 2, 3 and 5 cut PW3. PW5 further stated that he also saw appellants no. 11 and 13 beat PW3 with a stick. PW5 managed to extract PW3 from this milieu and take him to hospital on a motorcycle. - The appellants testified, not on oath. In their defence they denied committing $[42]$ the offences. They did not call any witnesses. They basically set up alibis that they were never at the scene of crime and were somewhere else at the time the offences were committed. - The law on contradictions and inconsistencies is well settled. Major $[43]$ inconsistencies will usually result in the evidence of the witness being rejected unless they are satisfactorily explained. Minor ones, on the other hand, will only lead to the rejection of the evidence if they point to deliberate untruthfulness. See Twinomugisha Alex Alias Twine and others v Uganda [2003] UGSC 20. - The contradictions in the PW1 and PW3's on the state they found PW3 were $[44]$ not major. Each person came at a different point in time and what each perceived was not exactly at the same moment. And there could be variations. In any case it was not contested that PW3 had been the subject of an attack. - There was a contradiction in the evidence of PW1and PW4 whether the $[45]$ deceased was pulled from the motorcycle or got off by himself. PW4 in his cross examination supported the version of PW1 that the deceased was pulled off the motorcycle that brought him to the scene of his murder. - The inconsistencies in PW4's evidence was satisfactorily explained. He stated $[46]$ he wasn't in the right senses when he recorded the statement since he was afraid because he had never seen a dead body and he could easily have made a mistake.

- [47) In our view this was a question of identification where a person recognises ^a person he or she already knows. There was no likelihood of mistaken identity in this case. Abdalla Nabulere & 2 Ors v Uganda [1978] UGSC 5, followed. - [48] From the evidence on record it is clear that the appellants were well known to PWl, PW2, PW3, PW4 and PW5 as village mates and neighbours before the incident. The incident happened between 4:00 p.m. and 5:00 p.m. There was enough light for the witnesses to make proper identification. PWI stated that she was 70 meters away from the home of her father in law and was able to observe what was going on there. Other witnesses,PW2, PW3, and PW5, who went to the PW3's home, testified as to what they saw there. Even if the evidence of PWI in relation to count 2 was not taken into account there was ample evidence from other witnesses to prove the prosecution case. - l49l On the count 1, it was the evidence of PWI that 3 people, including appellants No.6 and No.13 pulled the deceased from the motorcycle. Appellants No. 1, 2,3 and 4 cut the deceased with pangas. Appellants No. 6, 10, and 1 I beat the deceased with sticks. PW4 stated that 2 women and 1 man, including Appellants Nos. 4 and 10, confronted the deceased. Appellant No.1 grabbed and beat the deceased together with appellants no.4, l0 and 13. Appellants No. 1 ,4, and 10 had bows and arrows. - [50] At the time of the murder of PWI's husband PWI was in a banana plantation about 15 metres away from where her husband was attacked. It was daylight, between 4.00 pm to 5.00 pm. She was able to see what happened and her testimony is corroborated by the testimony of PW4. - [51] The alibis set up by the appellants were demolished by being placed at the scene of crime by the prosecution evidence. We are satisfied that appellants no.l, 2, 3, 4,6, 10, I I and 13 were properly identified by PWI and PW4 as the ones who murdered the deceased. - 152) On the count 2,PW2 testified that appellants no.1,2,4 and 5 cut PW3. PW3 stated that appellants no.1, 2,4 and 5 attacked him; appellants no. 1, 2,4 and 5 cut him on the head while appellants no. 7, 8, 9, I I and 12 beat him with

sticks. PW5 stated that appellants no. 1,2,3 and 5 cut PW3, llth and 13th appellants no. I I and 13 beat him with sticks.

- [53] The defence of the appellants were an alibi that they were not at the place where and at the time this crime was committed. - [54] In our view, the prosecution adduced sufficient evidence to demolish the defence of alibi and establish that appellants no l, 2,4, 5,7,8,9, ll, ¹³ attempted to cause the death of PW3. - [55] On count 3, PW5 testified that appellants no. 3 and 5 cut him on the left hand, the appellant no.5 cut him on the right thumb and appellant no.2 cut him on the ear and head. - [56] The appellants' defence was an alibi. They were not at the place where this crime was committed at the time it was committed. - [57) We find that the prosecution adduced sufficient evidence to place the appellants no.2,3 and 5 at the scene of crime and that they attempted to cause the death of PW5. - t58] In agreement with the learned trial judge after a reappraisal of the evidence we are satisfied that the appellants were rightly convicted. The appeals against conviction are without merit and are rejected accordingly.

## Appeal against sentences

[59] The principles upon which an appellate court may interfere with a decision of the trial court on sentencing are well settled. In Lawrence Kakooza v Uganda 1994 UGSC I the Supreme Court set the same out in the following words,

> 'An appellate court will only alter a sentence imposed by the trial court if it is evident it acted on a wrong principle or overlooked some material factor, or if the sentence is manifestly excessive in view of the circumstances of the case. Sentences imposed in previous cases of similar nature. while not being precedents, do afford material for considerations: See Ogala s/o Owoura v. R (r954) 2r E. A. C. A. 270.',

t60] At the outset we shall set out the sentencing order and the reasons therefor below.

## . SENTENCE:

Forthe I'tcountof murderof Oromcan Samuel,l have listened to the submissions of both sides, the accused persons took the law in their hands and murdered an innocent person in ^a gruesome manner and without any respect to his right of life and no consideration to his family that he had every right to take care of. This offence is rampant and must be stopped. ^I will give a deterrent sentence of 40 years to each accused person. Remand time shall be subtracted from that period. For the two counts of attempted murder against Onega John and Onimikuma Chris, the victims did not deserve the gruesome acts done to them by the accused. The accused had no rights to dangerously injury the victims in the manner that they did. These two people were physically and emotionally hurt narrowly escaped death. This offence is very rampant and must be stopped. I will hand down a sentence of 20 years to each accused persons involved in these offence. For those found guilty in the three counts, the sentences shall run consecutively. This will teach others planning to act the way you did not to even attempt doing so.

- [61] We note that the leamed trial Judge states in part that the remand period shall be deducted from the sentences that she imposed. The remand period is not ascertained by the learned trial judge. Nor does she deduct it and pronounce the final sentence after deduction. We do not know who the learned trial judge expected to do the calculation, especially as the commitment warrants for each appellant mentioned the sentences as either 40 years imprisonment or 20 years imprisonment. No deduction was made. This is the duty of the judge making the sentencing order. The learned trial Judge therefore failed to comply with article 23 (8) of the Constitution, as interpreted by Rwabugande v Uganda [2017] UGSC 8. - 162) We therefore find that the sentences are unconstitutional as no deduction was made of the period spent in lawful custody from the said sentences. This period was 4 years and 4 months. All the said sentences are hereby set aside.

Pursuant to the powers granted to this court under section 1l of the Judicature Act, we shall proceed to sentence the appellants afresh.

- [63] The appellants had no previous record and will therefore be treated as first offenders. Count I was a grave offence whose maximum punishment is the death penalty. However, given the fact that the appellants are first offenders it would not be appropriate to go for the maximum sentence. Secondly it is noted that the offences in question were committed by a mob attack arising out of land wrangles. This will be treated as a mitigating factor. See Kamya & 4 others v Uganda [2018IUGSC 12. - 1641 Counts 2 and 3 for attempted murder are serious offences and the victims are lucky to have survived this mob attack.

## Decision

[65] This appeal is allowed in part. We find a sentence of 20 years'imprisonment on count 1 and 10-years' imprisonment on counts 2 and 3 as appropriate. We deduct the period of 4 years 4 months the appellants spent on remand from each sentence. The appellants no. 1,2,3, 4,6, I0, t 1, and 13 are to serve ^a period of 15 years and 8 months'imprisonment on count 1 from the l6th August 2019, the date of conviction. The appellants no. 1,2,4,5,7,8,9, 11, 12 and 13 shall serve 5 years and 4 months' imprisonment on count 2 from the 16th August 2019, the date of conviction. The appellants no.2,3 and ⁵ shall serve 5 years and 8 months' imprisonment on count 3 from the 16th August 2019, the date of conviction. The sentences shall be served concurrently.

| o nJ<br>it^<br>(o-"',<br>Dated, signed, and delivered at Fort Portal this :s day<br>of | 2021t | |----------------------------------------------------------------------------------------|-------| | | | | ck | | | Justice of<br>Appeal | |

Justice of Appeal Catherine

Muchingeny.<br>Monica Mugenyi<br>Justice of Appeal

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