[2023] UGCA 305

# ⁵ THE REPUBLIC OF UGANDA

### IN THE COURT OF AI'I'E,AL OI.'UGANDA AT MBALE

(Coram: B Chcborion, JA, C. Gashirabakc, JA, O. Kihika, JA.)

### CRIMINAL APPEAL NO. OI28 OF 2OI8

(Arising.fi'ont Criminal Session No. I ICT-00-C1?-CS-8,9/20 I 5 )

#### BIII'WI1l1N

ALIAT TIMOTHY LOPUTUKA AI'PELLANT

#### NND

# UGANDA.... RESPONDENT

(Appeul .from the .ludgment of thc lligh (.'ourt of {)ganda Ilolden al Morolo, by []e nrietta l{ola1,o, .1. delivered on 28'h July, 2016) 15

#### JUDGMENT OF COUIIT

#### Introduction

l.] 'l'he appellant was charged with one count of murder contrary to scctions ¹⁸⁸ and 189 ofthe Penal Code Act.

2.1'l'hc facts are thal the appellant was a close fricnd of thc dcceased. Before thc incident, thc wilc o[' thc dcccascd had rcponcd to thc Local Council authorities of being harassed by the appellant and his fricnd. 'l'hc dcceased had warned them not to lay his wife. On the fatclul day while at thcir marital home, one of thc deceased's sons camc running to the mother informing hcr that her husband had becn murdcred. 'l'he matter was reportcd to thc policc and the appellant together with his fliend was tried for thc ol'fencc olmurder. At the conclusion olthe trial, the lriend was acquittcd and thc appcllant was convicted and scntenccd to 32 years' imprisonmcnt.

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- 5 3.1 The appellant being aggrieved with the decision of the High Court lodged an appeal in this Court. The appeal is premised on two grounds set out in the Memorandum of Appeal as follows; - l. The learned trial Judge erred in law and.fact when she failed to properly evaluale lhe evidence on lhe court record and only based her judgment on lhe evidence of the prosecution in isolation thus coming to a u,rong conclusion which occasioned a miscarriage of .juslice. - 2. 'l'hat the learned trial Judge errecl in lov,antl fact when he meled oul a maniJbstly harsh and excessive senlence oJ 32 against the appellant withoul considering lhe mitigqting factors.

#### IleDrcscntation

4. lAt the hearing of thc appcal, thc appellant was represcnted by Ms. F-aith Luchivya. 'Ihe respondent was representcd by M. Samali Wakooli, Assistanl Dircctor of Public Prosccution (A DPP.)

## 20 Ground onc

Thc learncd trial . Iudgc erred in law and act whcn shc failcd to properly evaluatc thc cvidcnce on the court record and only based hcr judgment on the cvidence of the prosccution in isolation thus coming to a wrong conclusion which occasioned a miscarriage of justicc.

²⁵ 5.] Ilelore we considcr this ground the respondent raised a preliminary objection on grounds that ground one offends Rulc 66(2) ofthe Court ofAppeal Rules for not being specific. Counsel submitted that counsel for the appellant did not clearly indicatc which particular piece ol evidence was wrongly decided. Counsel prayed that this Court applies the principles laid down in Bcnjamin

Clb/l

- ⁵ Oteka Vs. Uganda, Criminal Appeal No. I75 of 2018, and strike out this ground. - 6.1 Counsel for the appellant did not rcspond to this objection.

#### Consideration of Court

l.l According to Rule 30(l)(a) of thc Judicaturc (Court of Appcal Rules) Directions S. I l3-10 and Selle & another v Associatcd Motor Boat Co. Ltd.& others, (1968) E. A 123, the Appellate Court is mandated to reevaluate the evidence that was before thc trial court as wcll as the judgment and arrive at its own independent judgment on whcther or not to allow the appeal. A first appellatc courl is cmpowcred to subject the whole of the evidence to fresh and exhaustive scrutiny and rnake conclusions about it, bearing in mind that it did not have the opportunity to see and hear the witnesses firsthand. I'his duty was stated in Kifamunte Henry vs. Uganda' Supremc Court Criminal Appeal No. l0 of 1997.lt was hcld that a first appellate Court has the duty to revicw thc evidcnce ofthe casc and reconsider the materials before the trial Judge. The appellate Court must thcn make up its own mind not disregarding the judgment appealed lrom but carefully weighing and considering it. Whcn thc question arises as to which witness should be believed rather than another and that question turns on manncr and demeanor the appcllate Court must be guided by the imprcssions made on thc judge who saw the witnesses. IIowever, thcre may bc othcr circumstances quite apart from manncr and demeanor, which may show whether a statement is crcdible or not which may warrant a court dillering from the Judge evcn on a qucstion ol lact turning on the crcdibility ol the witncss which the appcllate Coufl has not sccn. See Pandva vs. R. ( 1957) E. A. 336.

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⁵ 2.] Considering the burden of proof and standard of proof in Criminal cases and based on thc presumption of innoccncc cnunciatcd in Article 28(3 ) of the Constitution ofthe Republic ofUganda 1995, an accused person can only be convicted by a court of law on the strength of the prosecution case and not on the weakness ofthe defense case.

3.1 Rule 66(2) of thc Judicature (Court ol Appeal Rules) Directives SI l3-10, provides that,

'l'he memorandum of appeal shall he set.forth conci.se ly ond under dislincl heuds numbered conscculivcly, v,ithoul urgumenl or narralive, the grounds o/ objection to lhe decision appealed against, speci/ying, in the cose o/-a.first appeal, the points of luv, or .fact or mixed lou' und./uct und, in lhe cuse qf a second aplteal, the points o/' lav,, or mixed lar and./ucl, v'hich ara ulleged to hava been wrongly clecided, and in a third uppeal the mottcrs of lav, o/'great public or ge neral importancc v,rongly decided.

4. I Ground one is stated in broad terms, that the trial Judge erred when she failcd to evaluate the evidence on record and only based her decision on the evidence of the prosecution. The rule is couched in mandatory terms. It requircs that a memorandum of appeal sets forlh concisely the grounds of objection to thc decision appealcd against, specificatly citing the parts ofthe law and facts alleged to have been wrongly dccided. 'Ihis was not the case in ground one. -l'he appellant therefore offended Rule 66(2). 20 25

5.] Ground I is struck ofL We shall procccd to considcr the second ground.

### (iround 2

Thc lcarned trial Judgc crred in law and fact when hc meted out ^a manifestly harsh and cxcessivc sentencc of 32 ycars against thc Appellant without considcring thc mitigating factors.

⁵ 6.] It was submitted by the appellant that the sentcnce of 32 years was harsh and excessive. It is argucd that the trial Judgc did not take into consideration mitigating factors. Counsel relied on Kwalijuka vs. Uganda, Criminal Appeal No. 532 of 2013, where it was held that taking into considcration the mitigating factors is lar lrom discretionary. In Tumwesigyc vs. Uganda, Criminal Appeal No.46 of 2012, the Court set aside a sentence of 32 years and substituted it with 20 years of imprisonment. Counsel also cited Mulolo vs. Uganda, Criminal Appcal No 504 of 2017, wherc thc court maintaincd a sentence of l5 years for murder which was metcd out to the appellant by the lower Court. Counsel prayed that this sentence should be reduced in line with the principlc of consistcncy. 10 15

#### Submissions for the resrrondent

7.] Counsel for the respondent submitted that the sentcnce passed down against the appellant was ncither harsh nor cxccssivc in the circumstanccs. It was submitted that a sentence of 32 years was certainly less than the death sentencc and could not be said to be excessive. Counscl citcd Kyalimpa Edward vs. Uganda, Supreme Court Criminal Appeal No. l0 of 1995, where it was held that an appropriate sentencc is a matter of discretion of the sentencing Judgc. In that case, the Court wcnt ahead and noted that the discrction would not bc intcrlercd with unlcss thc scntcnce was illegal or unless the Court is satisfied that thc sentence imposcd was manifestly cxcessive to amount to an injustice. Counsel rclied on the dccisions in Kiwalabye Bernard vs. Uganda, SCCA No. 143 of 2001, and Iliryomumaisho Alex vs. Uganda, Court of Appcal, CA No. 464 of 2016. 8.] Additionally, counsel lbr the respondent submitted that the injurics on the post-mortem report which was admitted as PIl.3, the dcceased suff'cred a slit

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⁵ neck with a sharp object. 1'hat this was cruel, inhuman, and degrading to end a life. Counscl cited Kaddu Kavulu Lawrence vs. Uganda, SCCA No. 72 of 2018, where thc Supreme Court in addrcssing the same issue of a sentence being harsh, hcld that a life sentence of imprisonment was legal. Counsel submittcd that likewise, a sentence of 32 ycars was lawful in the circumstanccs.

#### Consideration of Court

9.1 'l'hc Suprcmc Courl has laid down thc principlcs upon which an appellate Court should interfere with the sentencing discretion of the trial Court, in Kyalimpa Edward vs. Uganda; Supremc Court Criminal Appcal No.l0 of 1995, the Court rclied on ll vs. Haviland (1983) 5 Cr. App. R(s) ¹⁰⁹ and held that:

> "An appropriale senlence is a matler ./br lhe discretion q/'the sentencing judge. liach case prasents its rn'n.fitcts upon which a judge exercises his discrelion. It is the practice thot as an appellate courl, lhis courl v'ill not normally inlerlbre u,ith the discretion of the sentencing judge unless lhe senlence is illegal or unless courl is satis./ied that lhe senlence imposed by the lriol judge u,as manifestly so excessive as lo amounl lo an injustice: Ogalo sht Owoura vs. R (1951) 2l li. A. C./ 126 and R vs. MOllAMliDll.l J,'lMAl. (1948) I ⁵ t . A.c.t t26. "

# 10. I In Kiwalabyc vs. Uganda, Supremc Court Criminal Appcal N0.143 of 2001 it was held:

"T'he appellate courl is not to interfere wilh r'entence imposed by u lriol court \$'hich has exercised ils discrelion on senlences unless lhe exercise of the discretion is such thal the triul court ignored to

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consider an important matter or circumstances which ought to be considered when passing the sentence."

$11.1$ While sentencing the trial Judge held that;

> "The slitting of the neck of the deceased was an extreme act of violence that demonstrates the intention to kill. The right to life must be protected by handing down a stiff penalty. The accused is a young man of $37$ years, this is a mitigating factor that does *not override the aggravating factors. The appropriate sentence is 34 years. The accused has been on remand since June 2014, he is* sentenced to 32 years' imprisonment."

We have observed from the record that the appellant did not present 15 $12.1$ before the Court any mitigating factors. However, the trial Judge Considered the age of the appellant as a mitigating factor. It has to be noted that mitigating or aggravating factors are to guide the Court in making the sentencing decision but they are not binding on Court. In our own analysis of the above holding, we find that the trial Judge properly considered the mitigating factor. 20 We cannot therefore fault her.

> On whether the sentence of 32 years' imprisonment was harsh, in $13.1$ Mpagi Godfrey vs. Uganda Supreme Court Criminal Appeal No 63 of **2015**, the Supreme Court confirmed a sentence of 34 years' imprisonment for murder as handed down by the sentencing Judge and confirmed by the Court of Appeal. In Ndyomugenyi vs. Uganda, Supreme Court Criminal Appeal No.57 of 2016, the Supreme Court confirmed a sentence of 32 years' imprisonment for murder as passed by the re-sentencing Judge and confirmed by the Court of Appeal.

$\mathsf{S}$

- Guided by the principle of Consistency, it is our finding that the $[14.]$ $\mathsf{S}$ sentence of 32 years' imprisonment in a murder case was neither harsh nor excessive. - $[15.]$ This ground fails - Consequently, the appeal fails. $16.]$

#### We so Order 10

$n$ lon Dated at Kampala this. 2023 day of. **CHEBORION BARISHAKI JUSTICE OF APPEAL** $mix2'$ **CHRISTOPHER GASHIRABAKE JUSTICE OF APPEAL** OSCAR JOHN KIHIKA **JUSTICE OF APPEAL**

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