[2025] UGCA 16

# THE REPUBLIC OF UGANDA

# IN THE COURT OF APPEAL OF UGANDA AT MASINDI

(Coran: Richatd Buteera (DCl), He en Obura & trene Mulyagonja, JJA)

## CRIMINAL APPEAL NO. 674 OF 2015

10 MASAMBO JOSEPH APPELLANT

### VERSUS

# UGAN RESPONDENT

(Appealfrom lhe decision ol the High Cout of Uganda at Masindi before Byabakama J. detivered on the \gh Novenbet 2013 in CininalSession Case No. 42 of 2012.)

## JUDGMENT OF COURT

#### lntroduction

The appellant was indicted on two counts of aggravated robbery contrary to sections 2g5 and 286(2) of the Penal Code Act. He was tried before the High Court (Byabakama, J), convicted of the offence in count 1 and sentenced to 22 years' imprisonment on sth November, 20.13.

He was acquitted on count 2. )0

## The brief background of the Appeal

The brieffacts as asce(ained from the court record are that on 1Orh March 2010, the appellant and hls accomplices while at Kayera Village, Masindi Diskict, robbed Nasasira Victor (pW2) of cash wo(h Ushs. 50,000/=, six-inch mattress, one TV screen, a desk, women clothes, two

25 hurricane lamps and, at or immediately before or after the said robbery used a deadly weapon, to wit, a gun on her. She was cut on the head but she managed to observe and identify the appellant. ln the same night, the home of Gumisiriza George was also attacked by the thugs armed with a panga and they demanded for money. They took off with several properties as well and were not identified. Later, a mobile phone said to be that of Gumisiriza was tracked

+LW 7^.\*-

5 and recovered from a one Musinguzi Edger who revealed that it was sold to him by the appellant, hence his arrest.

The learned trial Judge found that the prosecution had proved its case beyond reasonable doubt in count 1. He convicted and sentenced the appellant as aforementioned. Being dissatisfied with the decision of the trial court, the appellant has now appealed to this court

- on the 2 grounds set out in the Memorandum of Appeal as follows; 10 - 1. That the learned trial Judge erred in law and fact when he convicted the appellant basing on uncorroboraled evidence of a single identfuing witness (PW2) without considering the unfavorable identifying conditions that existed when he held that the appellant was property identified and his defense of alibi destroyed by PW2 thereby reaching a wrong decision hence occasioning a miscarriage of justice.

#### ln the afternative and without prejudice;

2. The learned trial Judge erred in law and fact when he imposed an illegalsenlence of 22 years' imprisonment on the appellant when he failed to deduct the period spent on remand thereby occasioning a miscarriage of justice.

#### 20 Representation

At the hearing of this appeal, Mr. Mbalire tr/ohammed represented the appellant on state brief while Mr. Kulu Ndambi, chief state Attorney from the office of the Director public Prosecutions (ODPP), represented the respondent. The appellant was present in court. counsel for both parties filed their respective submissions which they prayed to adopt and their prayers were granted. we have considered those submissions and the supporting authorities in this judgment.

#### Appellant's Submissions

Counsel for the appellant submitted on ground 1 that the learned trial Judge failed in law and fact when he convicted the appellant on the evidence of pw2, a single identifying witness, without conoboration. He contended that had the trial court properly evaluated the evidence ³⁰

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⁵ of PW2, it wouid have found that the possibility of mistaken identity was not ruled out as suggested by the learned trial Judge in his conclusion. He refened to the principles to be followed in identification as laid down in AbtJdala Nabulere & others vs Uganda, Criminal Appeal No. I of 1978.

Counsel argued that although there were circumstances that could have favored proper identification, there were several others that did not favor correct identification, namely that; the appellant was not known to the complainant, the robbery took place at night and the hurricane lamp was djm. Further, that PW2 was cut on the fore head and blood was oozing out; she was in pain and fear since the assailants had a gun and they ordered them to keep Iooking down. They had torches which they flashed in the victims' eyes whenever they would 10

try to look up. 15

Counsel conceded that PW2 testified that the assailants spent almost an hour at their home which, under normal circumstances, would be sufficient time for proper idenlifjcation. He, however, argued that in thjs case one hourwas not sufficient for pW2 to identify the assailants because she was frightened by two factors: - firsfly, she had been cut and secondly, she had

noticed that the assailants had a gun. 2A

counsel submitted that having regard to the difficult conditions for identification as stated above, there was need for the prosecution to adduce other corroborating evidence to prove its case. He cited the Supreme Court decision in Bogere Moses vs tlganda, SCCA No. 1 of 7997which discussed at length the need for the trial court to caution itself and the assessors where the circumstances of identification are difficult as in the instant appeal and the requirement for supportive evidence.

Counsel argued that the ingredient of participation is satisfled by adducing evidence, direct or circumstantial, placing the accused at the scene of crime as the perpetrator of the offence. He relied on the Supreme Court decision in Bogere and another vs llganda (suprc) and

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- submitted that in this case, the prosecution failed to adduce evidence to prove that the 5 appellant was properly identified and placed at the scene of crime. He concluded that the ingredient of participation was not proved beyond reasonable doubt given that the appellant denied committing the offence from the onset of his testimony when he told court that he had spent the night at his home and the prosecution did not destroy this fact by its evidence. He - therefore prayed that this Court allows this ground of appeal, quashes the conviction and 10 acquits the appellant.

In regard to ground 2, counsel submitted that the sentence meted on the appellant in the circumstances was illegal. He alluded to the principles upon which an appellate court may interfere with a sentence imposed by the sentencing court as discussed by the Supreme Court

in Kyalimpa Edward vs Uganda, Criminal Appeal No. 10 of 1995, R vs Haviland (1983) 5 15 Cr. App R(S) 109 and Kamya Johnson Wavamuno vs Uganda, Criminal Appeal No. 16 of 2000.

Counsel submitted that the learned trial Judge erred in law and fact when he failed to deduct the period the appellant spent on remand from the sentence he imposed on him. He referred

to the Supreme Court decision in *Rwabugande Moses vs Uganda, SCCA No. 25 of 2014*, 20 where it was emphasized that it is a mandatory requirement under Article 23 (8) of the Constitution for the trial court while sentencing a convict to consider and deduct the period he or she spent on remand. He pointed out that he is aware that the decision in *Rwabugande* Moses vs Uganda (supra) was delivered on 3^rd March, 2017 after the decision in this case was made by the trial court in 2013. However, he argued that this Court in Kajooba Vesencia 25 vs Uganda, CACA No. 0118 of 2014 where the appellant was sentenced on 4th April, 2014 before the decision in Rwabugande vs Uganda (supra), held that the decision in **Rwabugande** was an attempt to interpret the constitutional provision for purposes of its application by the trial courts in taking into account the period spent in pretrial detention prior to conviction and sentence of a convict. Counsel implored this Court to set aside the sentence 30

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of the appellant and invoke its power under section 11 of the Judicature Act to sentence the $\mathsf{S}$ appellant afresh so as to meet the ends of justice.

## **Respondent's Submissions.**

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In response, counsel opposed the appeal. On ground 1, he submitted that the issue of corroboration was evaluated by the learned trial Judge at page 44¹, 2^nd paragraph, line 2-3 and he found that the identification parade where PW2 was the identifying witness provided 10 corroboration. Counsel added that at page 45, paragraph 1, the learned trial Judge stated that PW4 testified that the assailant stayed long in the house where there was light from the lantern and he was armed with a panga. We suppose counsel meant PW3 because PW4 was the police officer who conducted the identification parade. Even then, page 45 of the records contains summing up notes and not the lower court judgment. 15

Regarding the appellant's identification, counsel submitted that the case of Abudala Nabulere and others vs Uganda (supra) provides a clear guide when considering whether or not the identifying conditions were favorable and if the witness made a correct identification. Factors to consider are whether the assailant was known to the witness before, the source of

- light at the scene, the proximity between the witness and the assailant and the amount of time 20 the assailant was under observation. He argued that in the instant case, the appellant was properly identified and the learned trial Judge so found. Basing on the prosecution evidence, counsel pointed out that the duration of the attack was from 9:00pm- 11:00pm which implied that the attackers spent more than one hour in the said house. Further, that there was a - lantern on the floor of the sitting room right in front of the victim and the gunmen stood in front 25 of her. He added that the witness kept wiping blood from her face and whenever the assailants switched off the torch they were holding, she would look up and observe them. Counsel

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^&lt;sup>1</sup> We note that counsel was referring to the handwritten page numbering of the record as opposed to the typed one. Even then, what he refers to is actually the learned trial Judge's summing up notes to the assessors and not the judgment.

⁵ contended that the impression that a frightened victim of an attack cannot identify his or her attacker is not true since the court observed that he or slte can.

Regarding the appellant's defence of alibi, counsel submitted that the mobile phone which Gumisiriza George (PW6) said was stolen from him when the assailants attacked his home was recovered from a one Musinguzi Edger who revealed that it was the appellant who sold

it to him. According to counsel, that evidence put the appellant at the scene of crime. ln conclusion on this ground, counsel submitted that the learned trial Judge properly evaluated the evidence on record and arrived at the correct decision. 10

ln regard to ground 2, counsel submitted that when the learned trial Judge was sentencing the appellant at page 52 of the proceedjngs, he said the convict deserved the 22 years, the victim was cut on the head and she was lucky to survive to tell her story and the circumstances

of this case merited a deterrent sentence.

On submission for the appellant that the learned trial Judge failed to deduct the period spent on remand thereby occasioning a miscarriage of lustice, counsel submitted that the learned trial Judge stated as follows;

'ln the prcnises, I senlence the convict lo 22 yearc' inprjsonment takjng into account lhe peiod spent on remand"

Counsel argued that the catch word is "taking into account the period spent on remand.. He added that it would have been a different issue if he had not mentioned it. Fu(her, that the learned trial Judge could not have followed the decision in Rwab ugande Moses vs lJganda (supra) which was delivered on 3'o March 2017 after the decision in this case had been made

on 5rh November 20'13. He therefore argued that the requirement to arithmetically deduct the period spent on remand as stated in Rwabugande Moses ys Uganda (supra) was not applicable in this case

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- s ln what appears to be an alternative argument, though not expressly stated, counsel pointed out that this Court has powers pursuant to section 11 of the Judicature Act to arithmetically deduct the time spent on remand at the time of sentence. He relied on the decision in Ssetumba Frank and ors vs Uganda, Crininal Appeal No. 046T of 2020 and prayed that this Cou( arithmetically deducts the time the appellant spent on remand as required by - n Rwabugande Moses vs Uganda (supra) and Article 23(8) of the Constitution so that the appellant serves the remaining sentence.

ln the same breath, counsel concluded that given the circumstances under which the offence was committed and the fact that the maximum sentence is death, the sentence of 22 years was appropriate and too lenient. He thus prayed that the appeal be dismissed and both the 1s conviction and sentence be upheld and confirmed respectively.

## Analysis and Decision of Court

This being a first appeal, this Court is required to re-evaluate the evidence and make its own inferences on all issues of law and fact as provided for under Rule 30(1) (a) of the Rules of this Court and elaborated in a number of decisions that include Bogere Moses vs Uganda

#### 20 (supra) and Henry Kfamunte vs Uganda, Supreme Court Criminal Appeal No. 10 ol 1997.

On ground 1, the appellant faults the learned trial Judge for convicting him of the offence of aggravated robbery based on uncorroborated evidence of a single identifyjng witness (pW2). He contended that if the trial court had properly evaluated pW2's evidence, it would have

25 found that her evidence did not rule out the possibjlity of mistaken identity.

The law regarding identification has been stated in numerous decisions. In Abdulla Bin Wendo & Anor vs R, (1953) 20 EACA 166 the East African Court of Appeat hetd as foflows;

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"Subject to certain well-known exceptions it is trite law that a fact may be proved by the $\mathsf{S}$ testimony of a single witness but this rule does not lessen the need for testing with the greatest care the evidence of a single witness respecting identification especially when it is known that the conditions favoring a correct identification were difficult. In such circumstances what is needed is other evidence, whether it be circumstantial or direct, pointing to guilt, from which a Judge or jury can reasonably conclude that the evidence of identification, although based on the testimony of a single witness, can safely be accepted as free from the possibility of error."

The need for greatest care as emphasized in the above case is not required in respect of a single eye witness only, but is necessary even where there is more than one witness where the basic issue is that of identification. This point was stressed in Abudala Nabulere & others **vs Uganda (supra)** in the following passage in the judgment:

"Where the case against an accused depends wholly or substantially on the correctness of one or more identifications of the accused, which the defence disputes, the judge should warn himself and the assessors of the special need for caution before convicting the accused in reliance on the correctness of the identification or identifications. The reason for the special caution is that there is a possibility that a mistaken witness can be a convincing one and that even a number of such witnesses can all be mistaken. 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

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## 5 no other evidence to suppott the identification evidence: provided the coul adequately warns itself of the special need for caution."

Bearing all these factors and the above caution in mind, we shall proceed to re-evaluate the evidence on record with a view of determining whether the learned trial Judge erred in convicting the appellant of the offence of aggravated robbery on uncorroborated evidence of

a single identjfying witness. 10

> We note from the court record that the prosecution basically relied on the evidence of PW2 and PW3 to prove the ingredient of participation of the appellant. PW2, Nasasira Victor, testifled that on 1oth March 2010 at about 9:00pm at night while she was inside her house in Kayera with her co-wife Jovans Kentee, the appellant attacked her home, moved her out of the house and took her to another house where she found other men and her mother in law called Justine Kalinkinza. He was asking for money and he cut her suit case. He then cut her on the face and cheek with a panga and blood was oozing. She had never seen him before but she tried to recognize him using a lamp in the sitting room where she was seated. The incident took about an hour because the three attackers came at g:00pm and left at around

¹1:00pm. 20

> The attackers were holding pangas and they were removing property from the house while the appellant had a gun. After removing the propery from the house, the appellant requested them for a padlock to lock them inside but they did not give jt to them. The attackers got ^a metal and locked them inside and they left. They took a TV, clothes, battery, and mattresses.

After leaving PW2's home, a boy came running from George Gumisiriza's house which is about half a kilometer away saying that the attackers invaded their home. After a while, the son of Justine, one Herbert, came from watching football and he opened the door for them and called the police. They came and took her to Kibanja Hospital where she spent a night and in the morning she was taken to Dr. Senyonyi's Hospital. After 2 months, they were informed that the assailants had been anested. They went to the police station where many 25 30

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people had been assembled for her to identify her attackers. She identified the appellant as $\mathsf{S}$ her attacker and she also recorded police statements though she did not understand what the officer said in English.

In cross examination, PW2 stated that they were four people locked in the house namely; Jovans Kentee, Kakuro Isaya, Justine and herself. She added that the assailant was standing in front of her and there was a lamp on the floor in the sitting room which was also in front of 10 her. The assailants who had pangas also had a torch which they were flashing at her so that she could not recognize them. They torched at her three times and she looked down but she looked up at them several times when they switched off the torch. They spent about one hour in the house as they were removing property. The appellant was close to her while the other two assailants were inside the bedroom picking property but they passed via the sitting room 15 as they moved out. She added that the assailant who attacked her was wearing a long black jacket and he did not have a cap while the other assailants were putting on white shirts.

PW3, Justine Kalinkinza, testified that on 10^th March 2010, they were four people at home and were invaded at night at around 9:00pm by three people. One had a gun and the two had pangas. She only knew the one person in the dock (appellant) who had a gun and was 20 standing near her by the door while the other two were taking out property from the house. The assailant with the gun was asking for a phone and money and he threatened to beat her to death. She had kept Ushs. 50,000/= with PW2 for buying posho which she told her to give to them. PW2 gave them the money but they cut her as they requested for more money.

She added that the assailants came at 9:00pm and left at 11:00pm. The one with the gun 25 asked if she knew him but when she looked at him she did not know him but kept looking at him as he did not move. They took a mattress, a TV which was in the cupboard and the suit cases which contained their clothes. After taking all the property, the one with a gun asked for a padlock which they did not have. They were taken inside the bedroom in which they locked them up and told them not to make an alarm. After a while they heard a boy from 30

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s another place crying for rescue. He was one lvuhirwe who came from Gumjsiriza,s house and asked them to open for him. Sho(ly after, PW3's son called Herbert came. He was told to call the LC1 and the police to come and take PW2 to hospital. The following day police came and took photos of the scene and the victims made statements at police station. After 2 months the police came to the Chairman and asked the victims to go and identify the people 10 suspected to have invaded them. PW2 went and identified the appellant.

In cross examination, PW3 stated that there was moon light and lamp light. She added that the man with a gun had a long black jacket while the other 2 assailants were putting on white shirts though she did not recognise them. She also said that the person who brought pW2 was the one who cut her and she saw him but she did not recognize him. She added that the rs one in the dock (the appellant) was the tallest and he was the one with a gun.

ln his defence, the appellant denied everything that was said in court about him and he stated that on the night of lort March 2010, he spent the night at his home. He also denied owning a gun and added that there was a search at his home and none of the stolen items were recovered. Further, that he was arrested by RRU who asked him to tell them where the gun

- zo was and he was to(ured to make a police statement. He also stated that pW2 was brought to Kiryandongo for identifjcation but she returned with her people at the police three times while he was in the cells because they wanted to negotiate with him to give them 5 million which he did not have. After a month, he was transferred from Kiryandongo to lMasindi police station where he was paraded to be identified with some other suspects. The lady who had - ordered to sit down and he was given a paper to sign on as his statement. 2s come to do the identification came and direcfly pointed at him. He raised his hand and objected to the parade because he had aheady seen that rady in the police officer's office and eadier at Kiryandongo Police station. The porice officer tord him not to mind and he was taken to a uniport where he found lour men in civilian clothes armed with batons. He was

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⁵ The learned trial Judge in his judgment at pages 57-62 of the court record, evaluated the evidence on the appellant's participation. He also cited a number of authorities on identification including Abdarra B,r, Wendo and anor vs R (supra) andAbudala Nabulere & others vs Uganda (supra)among others which guided him in reaching his decision. Baslng on the evidence of PW2, a single identifying witness whom the learned trial Judge found to be a steady and forthright witness, the appellant was found to have been properly identified and placed at the scene of crime. The learned kial Judge also found that pW2's evidence totally destroyed the appellant's alibi. In aniving at his conclusion to convict the appellant, he found as follows; 10

'ln sunmary, I am satisfied the canditions lavored a correct and unnislaken identficalion of the accused. PWz gave a cleat analogy as ta haw she nanaged to obserue the accused despite the injury an het head. I had oppotunity to obseNe het on the witness stand and she rmpressed me as a steady and folhright witness. I found her truthful and quite reliabte. She was abte lo positively identify the accused and thus placed hin at the scene. Her identifjcatian evidence tatalty destroyed the accused's alibi Haylrg dlscussed as above, I do find the ingredient of palicipalion in caunt ¹ has been proved.'

We acknowledge that the identification was done under difficult circumstances and the appellant was not known to PW2 before the incident. Be that as it may, both pW2 and pW3 testified that the incident lasted from g.00pm-1 1.00pm implying that the assailants spent close to two hours at the scene of crime which in our view was adequate time for the appellant to be identified. The two witnesses both testified that there was a lantern in the sitting room where the appellant stood with a gun while his two colleagues were picking the stolen items from the bedroom and ferrying them outside. pW2 stated that although she was bleeding and blood was almost entering her eyes, she kept wiping it and whenever the assailants would switch off the torch she would look at the appellant who was standing close to her with uncovered head. That way she managed to identify him. ln our view, all these factors aided PW2 to positively identify the appellant jn line with the guidance in Abudala Nabulere & 25

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**others vs Uganda** (supra) and placed him at the scene of crime thereby disapproving his $\mathsf{S}$ alibi. PW3 on her part said she did not recognize the appellant although her evidence corroborates that of PW2 in terms of what the appellant was putting on, the duration of the attack, lighting and proximity of the assailant with the gun to PW2.

The learned trial Judge found the evidence of identification parade unreliable and he disregarded it. He then considered the evidence of PW2 as a single identifying witness 10 credible and he relied on it to convict the appellant. Having re-evaluated the evidence adduced by both the prosecution and defence during the trial and upon perusing the judgment of the learned trial Judge, we find no reason to fault him for his finding and conclusion. We therefore find that the appellant was properly convicted of the offence of aggravated robbery.

15 In the premises, we find no merit in ground 1 of the appeal and it accordingly fails. Consequently, we uphold the appellant's conviction.

On ground 2, the appellant faults the learned trial Judge for imposing an illegal sentence of 22 years' imprisonment on him when he failed to deduct the period spent on remand thereby occasioning a miscarriage of justice. It is now settled law that an appellate court is not to interfere with the sentence imposed by a trial court where it has exercised its discretion on sentence, unless the exercise of that discretion is such that it results in the sentence imposed being manifestly excessive or so low as to amount to a miscarriage of justice or where the trial court ignores to consider an important matter or circumstance which ought to be considered while passing sentence or where the sentence imposed is wrong in principle. This

was stated by the Supreme Court in the case of Kiwalabye Bernard vs Uganda, Criminal 25 Appeal No.143 of 2001 (unreported).

Applying the above stated principles to the instant case, we have perused the record and studied the sentencing proceedings. In arriving at his sentence, the learned trial Judge stated as follows; KK

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## ,SEIVIEA/CE

I have carefully considered lhe submrsslons of bolh sldes on sentence. lt is common knowledge there is great apprehension in our society over the increasing number of such cases where law abiding citizens no longer feel secure in their own homes especially at night, owing to persons of the convict's caliber who attack, maim or even kill the occupants so as to tay hands on their propefi. society is looking to the coutts to send a strong waming to would be offenders by firmly dealing with the convicted offenders. The victim in this case was cut on the head and is lucky to have suruived to tell the story. others have not. The circumstances of thls case do merit a deterrent sentence in my view.

ln determining the appropriate sentence, cou takes cognisance of the fact the convict is a first offender. He is now 40 years of age and not so young anymore. He has several children and other dependants on his head. while the maxinum sentence fot this type of offence is the death penatty, this would not serve the ends of justice in the instant case. He has been on remand for over 3 years, Neverfheless, society would be slightly safer without the tikes of the convict. He therefore needs to be kept away for a while as he undergoes reform, ln the premises I sentence the convict to 22 years' imprisonment taking into account the period spent on remand. ln addition, and in accordance with section 286 (4) of the Penal code Act, the convict shall pay shs. ss0,000ts- to Nasasira victor as compensation for fhe /oss of her property. Right of appeal against the conviction and sentence explained." 15 20

Article 23 (8) of the Constitution enjoins court while passing sentence to take into account the period a convict spent in lawful custody prior to completion of his or her trial. Failure to do so, renders the sentence passed illegal. see: Rwabugande lly'oses vs lJganda (supra). 25

From the above sentencing proceedings, we observe that the learned trial Judge not only took note of the 3 years the appellant had spent on remand but he also took it into account while sentencing him. He clearly stated in his sentence that'tntheprernrses lsentencethe

convict to 22 years' impisonment takinq into account the period spent on remand.' (emphasis 30 mine)

It should be noted that the sentence in this appeal was imposed on 5^th November 2013 before $\mathsf{S}$ the decision in Rwabugande Moses vs Uganda (supra) came into effect. During the sentencing regime of the pre-Rwabugande decision, the courts were not required to arithmetically deduct the period the appellant spent on remand but rather to take into account that period while sentencing. In Kizito Senkula vs Uganda, SCCA No. 24 of 2001 the

Supreme Court stated as follows: $10$

> "As we understand the provisions of article 23(8) of the Constitution, they mean that when a trial court imposes a term of imprisonment as sentence on a convicted person the court should take into account the period which the person spent in remand prior to his/her conviction. Taking into account does not mean an arithmetical exercise. Further, the term of imprisonment should commence from the date of conviction, not back-dated to the date when the convicted person first went into custody."

In Abelle Asuman vs Uganda, SCCA No. 66 of 2016 the Supreme Court stated as follows:

"Where a sentencing Court has clearly demonstrated that it has taken into account the period spent on remand to the credit of the convict, the sentence would not be interfered with by the appellate Court only because the sentencing Judge or Justices used different words in their judgment or missed to state that they deducted the period spent on remand. These may be issues of style for which a lower Court would not be faulted when in effect the Court has complied with the Constitutional obligation in Article 23(8) of the Constitution."

We also find very relevant the following observation and guidance of the Supreme Court in that case: -

"This Court and the Courts below before the decision in Rwabugande (supra) were following the 25 law as it was in the previous decisions above quoted since that was the law then. After the Court's decision in the **Rwabugande case** this Court and the Courts below have to follow the position of the law as stated in **Rwabugande (supra).**"

Guided by the above decided cases, we find that the sentence of 22 years which was imposed on the appellant was not illegal since the learned trial Judge took into account the period the 30 appellant had spent on remand as required by Article 23 (8) of the Constitution. For that

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reason, we decline to interfere with the discretion of the learned trial Judge and in the $\mathsf{S}$ premises, we find no merit in this ground of appeal.

We accordingly dismiss this appeal and uphold both the conviction and sentence.

We so order.

Dated at Masindi this ... 2................................ .......................................

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**Richard Buteera DEPUTY CHIEF JUSTICE**

Hellen Obura **JUSTICE OF APPEAL**

Irene Mulyagonja

**JUSTICE OF APPEAL**

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