[2021] UGSC 33

### IN THE REPUBLIC OF UGANDA

$\mathbb{R}^n \times$

# IN THE SUPREME COURT OF UGANDA HOLDEN AT KAMPALA

### CRIMINAL APPEAL NO.43 OF 2018

### (ARISING OUT OF COURT OF APPEAL CRIMINAL APPEAL NO. 145 OF 2013)

## CORAM: OWINY-DOLLO, CJ; ARACH AMOKO; PAUL MUGAMBA; EZEKIEL MUHANGUZI; MIKE CHIBITA; JJSC

MAWAZI MALINGA::::::::::::::::::::::::::::::::::::

#### **VERSUS**

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

(An appeal arising from a decision of the Court of Appeal of Uganda at Kampala in Criminal Appeal No. 145 of 2013 before Hon. Justice Remmy Kasule, JA, Hon. Justice Barishaki Cheborion, JA, Hon. Justice Hellen Obura, JA dated 27^th March, 2018.)

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

This is a second appeal by the appellants; Mawazi Malinga, Saad Akim, Awali Sundya, Yazid Waiswa, Muhamood Sundya and Saad Sundya. They were tried and convicted for the offence of murder contrary to sections 188 and 189 of the Penal Code Act. They were sentenced each to life imprisonment. On appeal, the Court of Appeal upheld the convictions and the life sentences. They now appeal against both conviction and sentence.

$\mathbf{1}$

### **Brief background:**

The facts of the case as accepted by the lower courts were:

On 21^st August, 2009 at Nawansega village in Iganga District, the appellants armed with pangas and sticks waylaid the deceased George Kafuko, 61 years old and killed him.

The appellants were indicted, tried and convicted of murder contrary to sections 188 and 189 of the Penal Code Act and were each sentenced to life imprisonment by the High Court of Uganda sitting at Iganga (Flavia Senoga Anglin J) on 27/10/2013.

Being dissatisfied with the decision of the High Court, the appellants lodged an appeal in the Court of Appeal, which was dismissed

Following the decision of the Court of Appeal, the appellants lodged their appeal with this court.

The grounds of the appeal are as follows:

- (i) The learned Justices erred in law when they upheld the conviction of the Appellants based on a retracted, repudiated and false confessions wrongly attributed to A4 and A7 thereby arriving at a wrong decision. - That the decision of the learned Justices erred in law $(ii)$ when they held that circumstantial evidence adduced at the trial was sufficient to convict the Appellants yet such evidence was unreliable and unsatisfactory, thereby arriving at a wrong decision.

$\overline{2}$

- (iii) The learned Justices erred in law when they rejected the Appellant's defence of alibi thereby arriving at the wrong decision of upholding the conviction of murder. - (iv) The learned Justices erred in law when they sentenced the Appellants to life imprisonment which sentence was harsh and materially excessive and never took into account mitigating factors and period spent on remand.

At the hearing, the appellants were represented by Mr. Albert Mooli whereas Ms. Faith Turumanya, Assistant DPP, appeared for the respondent. Both counsel filed written submissions. They also made additional oral arguments highlighting their main points.

It is at this point that Counsel for the Appellants informed court that A1, Mawazi Malinga had died in prison. His appeal therefore abates.

Learned counsel for the appellants cited the case of Kifamunte Henry & Anor vs Uganda SCCA 10/97 to contend that the Supreme Court as the second appellate court can interfere with the conclusions of the first appellate court.

He cited also section 7 of the **Judicature Act** and rule 31 of the Judicature (Supreme Court Rules) Directions as vesting the Supreme Court with powers of original jurisdiction and that as such this court can vary decisions of the Court of Appeal.

### **Ground One**

That the learned Justices erred in law when they upheld the conviction of the Appellants based on a retracted,

# repudiated and false confessions wrongly attributed to A4 and A7 thereby arriving at a wrong decision.

Counsel referred court to section 23 of the **Evidence Act** and stated that a confession should only be admissible if it has not been repudiated or retracted and can only be relied on if corroborated; otherwise court should warn itself. He pointed out that the judge relied heavily on the charge and caution statements of A2 and A3 in total disregard of the rules set out in Festo Androa Asenua vs Uganda SCCA No. 1 of 1998.

He pointed out the irregularities that marred the charge and caution statement as being:

- That the statements were written in English and there was no translation in the local language was made - That there were more than two persons in the room where the statements were recorded - That the accused were tortured and hence their statements were not voluntarily obtained - That Police obtained both charge and caution statements and extra judicial statements but disregarded the extra judicial statements because they were not in their favour.

He averred that the confessions extracted through torture cannot safely be relied upon by court. He therefore reasoned that since the first appellate court failed to find the charge and caution statements

$\overline{4}$

inadmissible, a miscarriage of justice was occasioned to the Appellants.

He referred court to its decision in Mumbere Julius vs Uganda SCCA No. 15/2014 where the need to establish the consistency and truthfulness of a confession was emphasized.

He concluded by stating that given the evidence of torture, of more than two persons in the room where the statements were recorded meant that the charge and caution statements were not voluntary and that this contravened the guidelines set out by this court in **Festo Androa Asenua's** case (supra). He asked court not to uphold the charge and caution statements and proceed to quash the findings of the lower courts.

Ms. Faith Turumanya, appearing for the respondent, opposed the appeal.

Counsel contended that the Justices of Appeal based the conviction on the two charge and caution statements tendered through PW6 and PW8 in which A5 and A7 detailed the plan and execution of the deceased.

She cited the case of **Tuwamoi vs Uganda (1967) EA 84** to lay down the law on confessions. She quoted the following passage from that judgment:

"...a trial court should accept any confession which had not been adhered to during the trial with caution and must before finding a conviction on such confession be fully satisfied in all

$\mathsf{S}$

circumstances that the confession was true. Corroboration, however, was not necessary in law and court might act in law if it is fully satisfied after considering all the material points and the surrounding circumstances that the confession could not but be true."

She also referred to another passage from the case:

"...a court could generally only act on a confession if it was corroborated in some material particular by independent evidence."

She relied on the above to state that the two statements by A4 and A7 were amply corroborated. Further, she referred to section 27 of the **Evidence Act** which, is to the effect that when more than one person is being tried jointly for the same offence and a confession is made by one of those persons affecting himself, or herself, and some other persons is proved, the court may take into consideration such confessions against that other person as well as against the person who makes the confession.

Counsel referred Court to evidence of corroboration by various accused persons, including identifying the killer *pangas* that were traced and exhibited. She submitted that the clothes were also found hidden and exhibited, and subsequently the Government Analytical Laboratory matched the blood on the *panga* and that on the clothes.

$\mathbf{6}$

On allegations by the appellants counsel that the statements were written in English and not translated in the local language, Lusoga; and that there were more than two persons in the room where the statements were recorded and finally that the accused persons were tortured hence the statements were not voluntary, Counsel for the Respondent dismissed the allegations as an afterthought. She pointed that these were never raised in the Court of Appeal.

She referred court to the cases of **Matovu Musa Kassim vs Uganda** SCCA No. 27/2002 and Festo Androa Asenua vs Uganda (supra) to state that it was within the discretion of the trial judge to decide whether or not to admit a confession.

She further cited the case of **Njuguna s/o Kimani and 3 others vs R** (1954)21 EACA 316 where the learned Justices agreed with the Court of Appeal who observed as follows:

"...court can convict on a retracted or repudiated or both retracted and repudiated confession alone if it is satisfied after considering all material points and the surrounding circumstances of the case that the confession cannot but be true."

She asked court to find that the Court of Appeal was right in admitting the confessions that were voluntarily, and through the right procedure, recorded from A4 and A7 and that therefore the appellants were rightly convicted basing on those confessions together with all the other independent evidence that was provided to court.

$\overline{7}$

### **Ground Two**

That the decision of the learned Justices erred in law when they held that circumstantial evidence adduced at the trial was sufficient to convict the Appellants yet such evidence was unreliable and unsatisfactory, thereby arriving at a wrong decision.

Counsel for the appellants referred court to **Simon Musoke vs R** (1958) **EA 715**, concerning circumstantial evidence where it was stated that such evidence should consistently point to the guilt of the accused without any other hypothetical explanation as to the innocence of the accused. He also cited **Katende Semakula vs Uganda SCCA 11/94** to strengthen his point.

He pointed out inconsistencies in the prosecution case regarding eye witness accounts of meetings, scene of crime and the reliability of exhibits which were never subjected to DNA analysis.

He concluded his arguments on this ground by contending that both lower courts fell short of the standards required by law and instead based their decisions on speculation and emotion.

Counsel Turumanya, in response, referred Court to **Kifamunte** Henry & Anor vs Uganda (supra), which quoted R vs Hassan bin Said (1942) 9 EACA 62, to contend that the Supreme Court as the second appellate court can interfere with the conclusions of the first appellate court.

She also cited **Simon Musoke vs R (1958) EA 715** where it was stated that where prosecution case depends solely on circumstantial evidence, the court must, before deciding upon a conviction find that exculpatory facts are incompatible with the innocence of the accused and incapable of explanation upon any other reasonable hypothesis than that of guilt.

She contended that ample evidence was adduced to support the allegation that the appellants threatened, planned and executed the deceased at Mufumi swamp where they were seen by witnesses who knew them very well. She added that it is this evidence that the trial judge used to convict, and which the Court of Appeal agreed with, in upholding the conviction.

Counsel referred court to Duke Mabaya Gwaka vs Uganda **Criminal Appeal No. 59 of 2015,** where it was held, *inter alia*:

"... according to section $8(3)$ of the Penal Code, the motive by *which a person is induced to do or omit to do an act or to form* an intention is immaterial so far as regards criminal *responsibility. However, it is always useful since a person in his* normal faculties cannot commit a crime without a reason or a *motive. The existence of the motive is more likely that an* accused person did in fact commit the offence."

Counsel further submitted that much as Prosecution evidence may have been pieces of circumstantial evidence, that does not create any form of doubt because, considered together, those pieces of

$\overline{9}$ evidence created sufficient evidence to persuade the Justices of the Court of Appeal to uphold conviction of the appellants.

She referred court to Byaruhanga Fodori vs Uganda SCCA $18/2002$ where it was held, *inter alia*:

"... we do not agree that the circumstantial evidence left a doubt" as to what caused the death. It is however true that each of the above pieces of evidence considered in isolation could not lead to the conviction of the appellant but when considered together they lead to an irresistible conclusion that it is the Appellant, and nobody else, who was responsible for the murder..."

She concluded by stating that the Justices of Appeal considered all the circumstantial evidence as a whole and rightly arrived at the decision to uphold the conviction.

She asked court to dismiss ground two.

## **Ground Three**

That the learned Justices erred in law when they rejected the Appellants' defence of alibi thereby arriving at the wrong decision of upholding the conviction of murder.

In relation to this ground of appeal, counsel for the appellant cited Kifamunte vs Uganda (supra) as his authority for stating that an accused person who puts up a defence of alibi does not assume the burden of proving the defence.

He argued that the appellants were not put at the scene of crime except by way of 'repudiated and retracted confessions of A4 to A7.' He stated that all the appellants put up alibis which were not destroyed by the prosecution and that if court had considered them it would have been left with no option but to acquit them.

He prayed that court finds merit in this ground.

On the defence of alibi, as presented in ground three of appeal, counsel for the respondent referred to pages 52 to 55 of the judgment of the Court of Appeal. She pointed out that their Lordships found that the trial judge concluded that all the Appellants who had raised an alibi, to wit, appellants 2-6, were properly put at the scene of crime. She added that they could not explain their presence at the places where they were arrested from and as such their alibis were destroyed.

She concluded that the Justices of the Court of Appeal were therefore unable to fault the trial judge but instead found that the alibis were neither credible nor truthful.

Counsel therefore prayed that ground three fails.

## **Ground Four**

That the learned Justices erred in law when they sentenced the Appellants to life imprisonment which sentence was harsh and materially excessive and never took into account mitigating factors and period spent on remand.

Counsel pointed out that section 7 of the **Judicature Act** vests this Court with the powers of original jurisdiction. Therefore, he

continued, this Court is placed in the same position as the High Court.

He referred to section 2(1) of the **Trial on Indictments Act**, which gives the High Court sentencing powers:

"The High Court may pass any lawful sentence combining any of the sentences which it is authorized to pass."

Counsel also referred court to the (Sentencing Guidelines for Courts of Judicature) Practice Directions to state that life imprisonment is the second gravest punishment. He stated also that under Guideline 24 thereof, court is supposed to consider mitigating factors.

According to Counsel, the appellants' mitigating factors included; --

- being first offenders, - advanced or youthful age, - remorsefulness - family responsibilities.

He acknowledged that the Court of Appeal took note of the mitigating factors but did not take them into consideration in relation to the sentences.

Counsel cited Steven vs Uganda SCCA No. 8/2009 where life imprisonment was defined to mean the rest of one's natural life. Based on this, he argued, such a punishment is manifestly harsh considering the mitigating factors. He proposed sentences of 15 years' imprisonment instead.

He argued also that life imprisonment denies the appellants the benefit of the constitutional provision under Article 23(8), which relate to deduction of time spent on remand.

Counsel also contended that it was not proper for all the appellants to be given a uniform sentence considering the different roles played and the different ages of the appellants. He pointed out that A1 and A4 acted on the instructions of A6 while A2 was about 18 years at the time of arrest.

He referred court to the case of **Mumbere Julius vs Uganda** (supra) Counsel thus prayed Court to allow the appeal and quash the sentence in respect of all the appellants.

In the alternative, he prayed that the Court be pleased to set aside the sentence of life imprisonment and substitute it with a sentence of about 15 years' imprisonment.

For the respondent, Counsel Turumanya referred to Article 28(8) **of the Constitution** in answer to this ground of appeal, it reads:

"No penalty shall be imposed for a criminal offence that is severe in degree of description than the maximum that could have been imposed for that offence at the time when it was committed."

She argued that the maximum sentence for murder is death and so the appellants who were sentenced to life imprisonment cannot refer to the sentence as excessive when it was less than the maximum

She referred court to Kyalimpa Edward vs Uganda SCCA No. 10/95, where court referred to R Vs De Havilland (1983) 5 Cr. **App. R 109** where it was held:

"It is the practice that as an appellate court, this court will not normally interfere with the discretion of the sentencing judge unless the sentence is illegal or unless court is satisfied that the sentence imposed by the trial judge was manifestly so *excessive to amount to an injustice.*"

She also referred court to Karisa Moses vs Uganda, SCCA $20/2016$ where this Court had this to say:

"An appropriate sentence is a matter for the discretion of the sentencing judge. Each case presents its own facts upon which a judge exercises discretion. This court will not interfere with the discretion of the sentencing judge unless the sentence is illegial or unless court is satisfied that the sentence imposed by *the trial judge was manifestly so excessive.*"

Counsel averred that the mitigating and aggravating factors were taken into consideration. She pointed out that the appellants should indeed have been sentenced to death given the following aggravating factors:

- The conduct of the appellants which undermined the rule of law, given that court had decided a land dispute in favour of the deceased whom they instead decided to murder. - The offence was premeditated. The Appellants held meetings. formed a committee, raised money and bought *pangas*. - The deceased was brutally murdered when he was cut all over the body using a $p$ *anga*. - The deceased was denied the right to live and take care of his family, which has caused suffering to the family and the community at large.

She contended that the trial judge took into consideration both the mitigating and aggravating factors and found that the aggravating factors outweighed the mitigating factors hence imposing a sentence of life imprisonment, which the Justices of Appeal agreed with.

She argued further that life imprisonment not being quantifiable, it was not possible to deduct the period spent on remand. Therefore, she contended that the trial judge and the Justices of Appeal were right not to calculate the period spent on remand.

She asked court to dismiss the appeal.

## **CONSIDERATION OF COURT:**

In ground one of appeal the appellants ask this Court to interfere with the decision of the Court of Appeal on ground that the conviction was based on retracted, repudiated and false confessions.

It is agreed that A2 and A3 made charge and caution statements. These statements were indeed relied upon by the trial judge, a decision upheld by the Court of Appeal.

The trial judge, before arriving at the decision whether or not to rely on the confessions, had the following to say:

"However, I am mindful of the requirement of accepting repudiated or retracted confessions with caution. And that *before a court can find a conviction based on such confessions,* it must be fully satisfied in all circumstances of the case the *confession is true.*

"This court is also mindful of the law that the court may take" the confessions into consideration against the makers and other accused persons under section 27 of the Evidence Act."

It is therefore evident that the trial judge sufficiently cautioned herself of the pros and cons surrounding retracted and repudiated confessions. Prior to that, she conducted two trials within a trial before deciding to rely upon them.

The Court of appeal agreed with the trial judge in their judgment and stated as follows:

"We have reviewed the evidence and the law as relate to the charge and caution statements in this case, and we find no

fault in the decision of the trial judge to admit the same as exhibits.

"The court thus agrees with the trial judge's holding that the charge and caution statements...were sufficiently corroborated by other independent evidence."

It is evident that the trial court satisfied the standard set by this court in the case of **Mumbere vs Uganda** (supra), when they cited **Tuwamoi vs Uganda** (supra) as follows:

"A trial court should accept any confession which has been retracted or repudiated with caution and must before finding a conviction on such a confession be fully satisfied in all circumstances of that case that the confession is true."

Court went on:

"This court being a second appellate court is not bound to reevaluate evidence on record unless it is established that the first appellate court did not re-evaluate the evidence. This court reiterated the above position in **Areet Sam vs Uganda** (supra)"

We are satisfied that the first appellate court sufficiently evaluated the evidence relating to the confessions and their admissibility by the trial judge. There is no reason to interfere with their findings.

This ground of appeal therefore fails.

Ground two of appeal faulted the Justices of appeal for upholding a conviction based on circumstantial evidence.

The case of **Simon Musoke vs R** (supra) clearly points out that circumstantial evidence is acceptable. It however sets the conditions upon which circumstantial evidence is admissible as follows:

"The court must be sure there is no other co-existing" circumstances which weaken or destroy the inference of guilt."

Also in Byaruhanga Fodori vs Uganda (supra), it was held as follows:

"It is however, true that each of the above pieces of evidence considered in isolation could not lead to the conviction of the appellant but when considered together they lead to an irresistible conclusion that it is the appellant and nobody else who was responsible for the death..."

In this case, the circumstantial evidence included the charge and caution statements, confessions, false alibis, weapon of murder, the panga, blood stained clothes of the appellants, meetings to plan the death and evidence of a land dispute that had recently been resolved in favour of the deceased as against the appellants.

Indeed, taken together, all these pieces of circumstantial evidence add up to an overwhelming case against the appellants. Hence the Justices of appeal concluded thus:

"This court thus agrees with the trial judge's holding that the charge and caution statements, exhibits P3 and P5, were sufficiently corroborated by other independent evidence. "The evidence of the $3^rd$ appellant that led to the tracing of a panga to be with the $4^{th}$ appellant at Mayuge and the finding that the blood on this panga, according to the Government *Analyst, was similar to the one on the deceased's clothes also* tied up with the contents in the said charge and caution statements."

Against such conclusion, it is difficult to understand where Counsel for the appellants found basis to submit the way he did in this passage:

"...the exhibits that were presented to court are not in any way linked to the appellants: say for example by way of DNA or proof of ownership; this creates doubts as to whether the *exhibits really belonged to the appellants as alleged.*"

Either Counsel did not read the record or he deliberately mixed up issues. Otherwise, it is clear from the passage from the Court of Appeal judgment (supra) that the Government Analyst was able to link the blood on the panga to the blood on the clothes of the appellants and the blood of the deceased.

We therefore find that though the conviction was based on circumstantial evidence, there is no doubt that the circumstantial evidence was overwhelming and could lead to no other conclusion except the guilt of the appellants.

Ground two of appeal therefore also fails.

Ground three of appeal is to the effect that the learned Justices erred when they rejected the appellants' defence of alibi.

Their Lordships, the Justices of Appeal considered the issue of alibi at page 52 as pointed out by Counsel for the Respondent. They agreed with the trial judge that the alibis raised by the appellants were sufficiently destroyed by the prosecution.

On page 53 they state the following:

"The evidence of PW4 and PW7 whom the trial Judge believed, also placed this appellant at the scene of crime. His alibi was destroyed.

"...also placed the $3^rd$ appellant at the scene of crime. His evidence that led to the recovery of the panga and the clothes which were vital exhibits in establishing the killing of the deceased, destroyed his alibi...

"This court having reviewed the evidence that was adduced at trial both from the prosecution and the defence, as well as the law, we are unable to fault the learned trial judge for rejecting as not credible and truthful the alibis of the appellants."

Counsel for the appellants contends that the appellants were convicted because they did not attend the burial and that there is no hard and fast rule that obliges all residents to attend funerals and as such the appellants should not be punished because of that.

Unfortunately, Counsel does not point us to a particular passage in the judgment where conviction was based on failure to attend the

funeral. What is clearly pointed out is that the alibis, which were the appellants' explanations for failure to attend the burial, were destroyed.

The conviction, therefore, was based on the placing of the appellants at the scene of crime following destruction of their alibis. We do not find that conviction was based on the fact that they did not attend the burial, a curious fact, in its own right, in the close knit communities in rural Uganda.

We therefore agree with counsel for the respondent that there is no reason to fault the Court of Appeal's conclusion that the alibis of the appellants were not credible or truthful.

Ground three therefore fails.

On ground four, the appellants contend that the sentence of life imprisonment was excessive and disregarded mitigating factors and the time spent on remand.

It is trite law that an appellate court can only interfere with a sentence imposed by a trial court in very limited circumstances. This Court has in numerous cases discussed the circumstances under which an appellate court can interfere with the discretion of a lower court.

In Kyalimpa Edward vs. Uganda, (supra), this Court while referring to $\mathbf{R}$ **vs. Haviland** (supra) found as follows:

"An appropriate sentence is a matter for the discretion of $\mathcal{L}$ the sentencing judge. Each case presents its own facts

upon which a judge exercises his discretion. It is the practice that as an appellate court, this court will not normally interfere with the discretion of the sentencing judge unless the sentence is illegal or unless court is satisfied that the sentence imposed by the trial judge was manifestly so excessive as to amount to an injustice: Ogalo s/o Owuora vs. R. (1954) 1 E. A. C. A 270 and R vs. Mohamedali Jamal [1948]1 E. A. C. A 126."

In Kamya Johnson Wavamuno vs. Uganda, SCCA No. 16 of **2000**, the court held as follows:

"It is well settled that the Court of Appeal will not interfere with the exercise of discretion unless there has been a failure to exercise a discretion, or a failure to take into account a material consideration, or taking into account an immaterial consideration or an error in principle was made. It is not sufficient that the members of the court would have exercised their discretion differently."

The above position has been reiterated in several other decisions of this court. These include Kiwalabye Bernard vs. Uganda, SCCA No. 143 of 2001, Wamutabanewe Jamiru vs. Uganda SCCA No. 74 of 2007, Karisa Moses vs. Uganda SCCA No. 23 of 2016.

This Court can only interfere with the exercise of discretion if it is satisfied that there was a failure to exercise discretion, or a failure

to take into account a material consideration, or an error in principle.

It is evident that their Lordships at the Court of Appeal considered the mitigating factors of the appellants. This was at page 17 of the record of proceedings. They considered the advanced age of the 1^st and $6^{th}$ Appellants and the youth of the rest of the Appellants.

They also considered the aggravating factors, including the killing of the deceased after he was the successful party in a judicial process, which undermined the rule of law. To quote from the judgment of the Court of Appeal:

"The commission of the offence was meticulously premeditated and executed by the appellants. Money was raised, pangas bought, the deceased's movements monitored and in carrying out the killing, they mercilessly cut the deceased with *pangas* all over the body, including the head. Before killing the deceased, the appellants issued threats to that effect.

"The killing of the deceased caused suffering to the deceased's family, relatives and the community at large as it sent a negative message that whatever the law courts may decide, the appellants are not bound by the decisions of those courts of law. They therefore eliminated the deceased, the beneficiary of the decision of the court of law that resolved the

## dispute. The rule of law and protection it gives to all people, was not to be obeyed by the appellants."

It is therefore evident that the Court of Appeal took into consideration both the mitigating and aggravating factors before arriving at the sentence of life imprisonment.

Perhaps the most aggravating factor in this case, in our view, is the fact that the appellants showed total disregard to the rule of law by brutally murdering a successful party to a legal process they had been the unsuccessful party to.

It is ironic, if understandable, that the appellants would wish to take full advantage of the legal process and get a lenient sentence when they showed no mercy to their victim whose only fault was to have been the successful party in a legal contest.

Even if this were the only aggravating factor, which it is not, the sentence of life imprisonment would be the least that the appellants would have hoped for. We see no reason therefore to interfere with the sentence imposed by the trial judge and confirmed by the Court of Appeal, except in the case of A2, for reasons that will soon become clear.

We fully agree with the Court of Appeal that in cases of life imprisonment, the issue of time spent on remand does not arise. Time spent on remand can only apply where a quantifiable term of imprisonment has been imposed. Life imprisonment, not being

quantifiable, cannot be subject to Article 23(8) of the Constitution that provides for time spent on remand.

Counsel for the appellants faulted the trial judge for sentencing all the appellants to one uniform sentence of life imprisonment and the Court of Appeal for confirming the sentence notwithstanding that they played different roles and are of different ages.

The age of 18 years of the youngest appellant, A2, at the time of arrest, has been noted. Eighteen years is the first age of majority. It is only one year older than seventeen, which is an age of minority. So at eighteen, one is a teenager who is only one year into adulthood.

He has a greater chance of reforming and becoming a responsible and useful adult, given his tender age.

In view of those considerations, therefore, while the sentence of life imprisonment against all the other appellants is maintained, the sentence of the youngest appellant, A2, who was 18 years old at the time of arrest is set aside.

He is instead sentenced to 25 years and 20 days in prison. He spent 4 years and 20 days on remand before he was sentenced. When the 4 years and 20 days are deducted from 25 years and 20 days, he will serve 21 years.

Having failed on all four grounds, in relation to all the appellants except A2, the appeal is dismissed.

The sentence of life imprisonment in relation to A2 is replaced with a term of imprisonment of 21 years.

We so order.

Dated at Kampala this ....................................


**CHIEF JUSTICE**

Hon. Justice Stella Arach Amoko

## JUSTICE OF THE SUPREME COURT

Hon. Justice Paul Mugamba

JUSTICE OF THE SUPREME COURT

Hon. Justice Ezekiel Muhanguzi

JUSTICE OF THE SUPREME COURT

Hon. Justice Mike Chibita

JUSTICE OF THE SUPREME COURT