[2024] UGCA 164

### THE REPUBLIC OF UGANDA

# IN THE COURT OF APPEAL OF UGANDA AT MASAK A

(Coram: Hellen Obura, Muzamiru Mutangula Kibeedi, Moses Kawumi Kazibwe, JJA)

# CRIMINAL APPEAL No. COA-00-CR-CN-0646-2015

**MAASA TWAHA ::::::::::::::: APPELLANT**

#### **VERSUS**

#### **UGANDA ::::::::::::::::: RESPONDENT**

[An appeal against the sentence only arising from the decision of the High Court of Uganda at Masaka (Hon. Justice Margaret Oguli Oumo) made on the 30^th April 2014 in Criminal Session Case No. HCT-06-CR-SC-088-20131

## JUDGMENT OF THE COURT

### Introduction

$\overline{1}$

The appellant, on his own plea of guilty, was convicted of the offence of murder contrary to Sections 188 and 189 of the Penal Code Act, Cap. 120, and sentenced to 25 years' imprisonment after court taking into consideration the remand period of about one and a half years. The deceased was the appellant's lover and had bled to death after being cut by the appellant several times on her head, the hands and other body parts, using a panga.

The appellant was dissatisfied with the sentence only and, with leave of court, lodged an appeal before this Court on the sole ground that:

The trial Judge erred in law and in fact in sentencing the appellant to 25 years' imprisonment which was a manifestly harsh and excessive sentence in the circumstances thereby occasioning a miscarriage of justice.

2020<br>2007<br>2007

Page 1 of 4

# **Representation**

- $3]$ At the hearing of the appeal, Ms. Brender Ainomugisha, Learned Counsel, appeared for the appellant on State Brief, while Mr. Noah Kunya, Learned Chief Sate Attorney in the Directorate of Public Prosecutions (DPP), appeared for the respondent. The appellant was present in court. - Both parties sought, and were granted leave to proceed by way of written submissions which $41$ were already on the court record.

# **Resolution of the appeal**

- $51$ The complaint of the appellant about the sentence is that the trial Judge failed to weigh the mitigating factors such as the appellant having pleaded quilty, as against the aggravating factors and only considered the aggravating factors and sentenced the appellant to 25 years' imprisonment which sentence was excessively harsh in the circumstances. - 6] The appellant further complained that the sentence was made in breach of the principle of consistency. The appellant cited several cases where a lesser sentence was imposed in murder cases of a similar nature, namely: **Atiku Vs. Uganda, criminal Appeal No 004/2009,** where this Court imposed a 20 years' imprisonment term for the offence of murder; and **Muhwezi Obed Vs Uganda, Criminal Appeal No. 147/2009**, where on appeal to this court, the death sentence was quashed and substituted with 18 years' imprisonment. - $71$ The appellant prayed for substitution of the High Court sentence with a lesser one. - 81 The respondent opposed the appeal and submitted that on the contrary the sentence was lenient in light of the manner in which the appellant killed the deceased which depicted a person devoid of all humanity. Counsel cited the Supreme Court decision in the case of Bashaha **Sharif Vs Uganda, Criminal Appeal No. 82 of 2018** where the death sentence was upheld by the Apex court where death was caused in a similar manner. Counsel prayed for dismissal of $\frac{1}{2}$ the appeal.

Page 2 of 4

91 From the record of appeal, during the allocutus the appellant's Counsel stated the mitigating factors thus:

> "The convict has pleaded quilty, and we submit that he has therefore not wasted court's time and resources. We pray against a deterrent sentence. He is a first offender, can reform and is still useful. Convict informs me that he regrets his action on the fateful day. He understands that what he did was crazy, and he should have solved his love relationship problem in another way. We pray for court's leniency in passing sentence and finally the convict has been on remand for 1 year and 2 months. We pray that it be taken into account in passing sentence."

- The appellant thereafter personally and in his own words prayed to the trial Judge for a lenient $10]$ sentence and stated that he would not commit murder again. - The sentencing order of the trial Judge stated: $11$

"The accused person pleaded quilty and was convicted on his own plea of quilty. He pleaded quilty at the earliest opportunity and so saved court's time and resources. The accused is 30 years of age and so has high chances of reform. He appeared remorseful and told court he regrets what he did, he prayed for a lenient sentence.

Never the less, the offence with which he is charged attracts a maximum sentence of death on conviction.

However, the offence was carried out in a most barbaric brutal manner, in a domestic brawl. If the convict had a domestic dispute to settle with the deceased, he had other means of doing it, than to kill such a young girl in the manner he did.

Killings in the midst of domestic disputes have become very common in our society and court needs to put a deterrent sentence to curb such acts in our community which make marriages an insecure institution.

Consequently, court passes a sentence of 25 years, imprisonment, considering that he has already been on remand for 1 and $\frac{1}{2}$ years.

The convict has a right to appeal against the sentence."

$12]$ From the record of appeal, we are satisfied that the trial Judge while sentencing the appellant specifically considered all the mitigating factors as raised by both the Appellant in person and his Counsel before considering the aggravating factors which outweighed the mitigating ones. As such, the appellant's complaints in that aspect are rejected for being baseless.

Corder Jorde

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- 131 As regards, the appellant's complaint of the sentence of 25 years having been passed in breach of the principle of consistency, we likewise find no basis for it. The sentence imposed was not out of range with the decided cases of this court. In *Oyita Sam Vs. Uganda, Court of appeal* **criminal Appeal No. 307 of 2010**, the Appellant was convicted on his own plea of guilty of having murdered his own brother over land wrangles and sentenced to death by the trial Judge. On appeal, this Court substituted the death sentence with 25 years' imprisonment. - In Emeju Juventine Vs. Uganda, Court of Appeal Criminal Appeal No. 095 of 2014, the $[14]$ Appellant was on his own plea of quilty convicted of murder of his wife by an axe and sentenced to 23 years' imprisonment by the trial court. On appeal, this court reduced the sentence to 18 years after deducting the 2 years the appellant had spent on remand.

#### $15]$ Disposition

- The appeal is dismissed. 1. - $2.$ The sentence imposed by the High Court is hereby confirmed.

# We so order.

Delivered at Masaka and dated this 15th day of July 2024.

**HELLEN OBURA Justice of Appeal**

**MUZAMIRU MUTANGUL KIRFFDI Justice of Appeal**

MOSES KAWUMI KAZIBWE

Justice of Appeal