[2024] UGHCCRD 64

## THE REPUBLIC OF U GANDA IN THE HIGH COURT OF UGANDA AT KAMPALA (CRIMINAL DIVISION)

### CRIMINAL APPEAL NO. 45 OF 2022

(Arising from Criminal Case No.274 of 2022 of Wakiso Chief Magistrates Court)

### **MAYANJA MUSA SSENKUMBA**

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APPELLANT

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**UGANDA**

**RESPONDENT**

# **BEFORE: HON. MR. JUSTICE MICHAEL ELUBU** JUDGMENT

The Appellant, Mayanja Musa Ssenkumba, filed this appeal against the sentence passed by HW Esther Nakadama Mubiru, Chief Magistrate Wakiso Chief Magistrate's Court.

### **Background**

The Appellant was convicted on two counts namely: Count 1, Obtaining Goods By False Pretence c/s 305 of the Penal Code Act (PCA); and Count 2; Obtaining Money By False Pretence c/s 305 of the PCA. The Appellant pleaded guilty on both Counts. He was then convicted and sentenced on Count 1, to four (4) years; and on Count 2, to three (3) years imprisonment. The sentences were to run consecutively.


Being dissatisfied with the sentence the Appellant lodged this Appeal.

The complainant, is a veterinary doctor called Dungu Robert, and the appellant was one of his clients. In the course of their interaction, the appellant informed Dungu that he had land for sale in a place called Kikyusa, which is located in Luwero district.

The complainant agreed to buy the land. He gave the appellant two Fresian cows, worth twenty-two million shillings, as part payment for the purchase. The appellant was supposed to hand over the certificate of title in exchange. The complainant received neither the land nor the title and reported to police. The appellant was accordingly arrested and charged. Following a plea of guilty, the appellant was convicted and sentenced as stated above.

## Grounds of Appeal.

- 1. The Learned Trial Magistrate erred in law and fact on imposing a harsh and severe sentence of seven years (07) imprisonment to the Appellant. - 2. The Learned Trial Magistrate erred in law and fact when she failed to consider the remorsefulness of the Appellant who never wasted court's time by pleading guilty to the charges.

It is the prayer of the Appellant that the sentence be set aside and substituted with a fair and lenient. He also sought an alternative order that he pay compensation in lieu of the term of imprisonment.


#### Submissions.

The parties were directed to file written submissions. It is only the appellant through his Advocates M/s Nansubuga, Awelo & Co. Advocates who put in arguments. The Respondent did not file submissions. This appeal has therefore been determined solely on the basis of the appellant's submissions.

#### Arguments.

It was argued for the Appellant, that it is a rule of practice that first offenders do not ordinarily receive the maximum sentence in event of conviction. In this case, the offence of obtaining money by false pretences carries a maximum sentence of 5 years. That by the Trial Magistrate ordering the appellant to serve his sentences consecutively, he receives an aggregated sentence of 7 years imprisonment. It is submitted that this would be illegal considering that the offences carry a maximum sentence of five years.

It was the contention that the Appellant was ready to refund the money to the Complainant but the Trial Magistrate ignored his offer to do so. That such refund would have done justice to the complainant. It was submitted further, that according to the Constitution (sentencing guidelines for Courts of Judicature) (Practice) **Directions 2013**, theft and theft related offences carry a maximum sentence of 5 years. The starting point is 2 and half years and the sentencing range runs from 6 months to $5$ years.

In Sum, that the sentence passed by the Trial Magistrate was manifestly excessive, illegal, harsh and out of range for sentences imposed in cases of this nature. The

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appellant cited Livingstone Kakooza v Uganda S. C. Criminal Appeal No. 17 of 1993 and Ainobushobozi venancio v Uganda Court of Appeal Criminal Appeal No. 242 of 2014.

### Determination.

I shall deal with both grounds together.

The principle was stated in *Kyalimpa Edward v Uganda SCCA No. 10 of 1995*. An appropriate sentence is a matter for the discretion of the sentencing Magistrate or Judge. Each case presents its own facts upon which the judicial officer exercises discretion.

It is now settled that an appellate court will only alter a sentence imposed by the trial court if it is evident that 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 (Livingstone Kakooza v Uganda Supreme Court Criminal Appeal No. 17 of 1993).

The appellant in this case pleaded guilty and challenges only the legality of his sentence. That the maximum sentence for obtaining money by false pretences is five years. That by making the two sentences here, that is four $(4)$ years on Count 1, and three $(3)$ years on Count 2, to run consecutively, meant that the Appellant was sentenced to seven $(7)$ years which is illegal.

It is trite that for every count on which a conviction is entered by the Court, there must be a separate sentence ordered (See Muligande Zyedi v Uganda Court of


# Appeal Criminal Appeal No. 39 of 2013 citing the case of Mohammed Warseme v R [1956] 23 EACA 576).

It is also the principle that the default position for such sentences is to commence the one after the expiration of the other, unless the court directs that the punishments run concurrently (Section 175 of the Magistrates Court Act Cap. 16). This does not imply however, that the convict is sentenced to the sum of such aggregated sentences. Each is a single sentence that is reckoned consecutively. In such circumstances, where the total exceeds the maximum sentence provided for does not of that single fact make it illegal.

But for purposes of appeal, such as in this instant case, the court looks at the totality of the period to be spent in detention (see Section 175 (3) of the Magistrates Courts Act).

In this instant case therefore, the aggregate sum of the sentence imposed on the appellant exceeds the maximum provided for by the law.

Generally, a maximum sentence should not be imposed on a first offender (see Mavuta v Republic [1973] 1 EA 89).

This court has noted, in addition, that the accused was a first offender and pleaded guilty. These factors should definitely have mitigated in his favour. In the circumstances, the sentence was harsh and the trial magistrate should have given these factors more weight.

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For those reasons, this is a proper case for the intervention of the appellate court to alter a sentence of the trial court. It is accordingly ordered that the prison term ordered stands, that is, that is four $(4)$ years on Count 1, and three $(3)$ years on Count 2, but the sentences shall run concurrently. Concurrent sentences should ordinarily be ordered in circumstances where the offences charged arose out the same event or transaction.

In his prayer, the appellant stated that he was willing to compensate the complainant for the loss suffered. Compensation has according been brought into issue in this appeal. It is the view of this court that ordering for the payment of compensation alone cannot address the total culpability of the appellant as it does not address his criminality. It is true however, that the complainant suffered loss. When the prosecution made submissions on sentence, they prayed for compensation as an additional order to the prison term. The learned trial magistrate did not address this prayer. In the circumstances, as this is a first appeal, this court can address all questions in issues brought before the trial court.

It is therefore ordered that the complainant be reimbursed for loss suffered. The question of the sum to be paid shall be determined by the learned Deputy Registrar after hearing the parties on compensation.

In the result this Appeal succeeds in part in the terms set out.

Villa, 22

**Michael Elubu** Judge 14.10.2024


Judgment delivered in the presence of the Appellant.

Court Clerk - Mr. Bulega Brian.

Festo Nsenga – Deputy Registrar

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