[2023] UGCA 49

## THE REPUBLIC OF UGANDA IN THE COURT OF APPEAL OF UGANDA AT KAMPALA CRIMINAL APPEAL NO. 0453 OF 2017 (CORAM: Musoke, Bamugemereire & Musota, JIA)

### MUHANGI MOSES alias MUGUME APPELLANT VERSUS

UGANDA RI]SPONDENT (Appeal ltom the Decision of lane Elizabeth Aliaidza l, in lligh Court Criminal Session No. 261 of 2013 holden at Entebbe)

# IUDGMENT OF THE COURT

The appellant, Moses Muhangi, was indicted for the offence of Murder contrary to section 188 and 189 of the Penal Code Act. It was alleged that

- the Appellant on the 1't day of Novembcr 2012in Kitooro Kiwafu, Entebbe Municipality in Wakiso District with malice aforethought killed Charity Mugisha. The appellant plcaded guilty and was scntenced to 25 years imprisonment. Dissatisfied, the Appellant sought leave of this Court to appeal against sentence only which was granted. The sole ground of appeal as set out in the Memorandum of Appeal is as follows; 15 20 - 1. That the Learned Trial ]udge erred in law and fact when she meted out a manifestly harsh and excessive sentence against the Appellant.

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#### Reptesentation

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At the hearing, the Appellant was represented by Mr Samuel Nsubuga while the Respondent was represented by Ms Immaculate Angutoko, Chief State Attomey from the Office of the Director of Public Prosecutions. Both counsel for the respective parties filed written submissions, which this Court relied on in arriving at its decision.

#### The Appellant's submissions

Counsel for the appellant submitted that it is settled law that thc Appellate court is not to interfere with the sentence imposcd by the Trial

Court unless the sentence imposed is manifestly excessive or so low to amount to a miscarriage of justice as was held in Kiwalabye Bernard v Uganda SCCA No. 143 of 2001. l0

Counsel submitted that the appellant was a first timc offender of ^a youthful age of 32 years at thc time of sentcncing hencc capablc of reforming and being re-integrated in society. Counsel added that thc Appellant pleaded guilty to the charge and thus never wastcd Court's time. 15

It was counsel's argument that the sentence of 25 years imprisonment imposed on the Appellant by the Trial Judge was not only manifestly harsh and excessive but was also out of sentencing range for similar offences. Counsel contended that the Supremc Court has emphasised the need to maintain uniformity whilc sentencing. I-le referrcd to Kamya Abdullah & 4 Ors v Uganda SCCA No.24 of 2015. Cou 11S I also referrcd


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to Kimera Zaverino v Uganda CACA No. 427 of 201,4; where the Appellant's sentence of life imprisonment was reduced by this court, to imprisonment for 17 years.

Counsel cited Mulumba Kaggwa & Anor v Uganda CACA No. 0331 of 2009 where this Court reduced the 1't Appcllant's scntence of lifc imprisonment for murder to 17 years imprisonment.

Counsel invited this court to find that the sentence of imprisonment for 25 years was out of thc sentencing rangc because it was manifestly harsh and excessive. He prayed that this court allows the appeal and thc attendant sentence bc substituted with an appropriatc one as shall be determined to mcet thc cnds of justice.

#### The Respondent's Submissions

In reply to the appellant's submissions, counsel for the respondcnt submitted that it is trite law that sentence is a discretion of a trial judgc and an appellate court will only interfere with a sentence imposed by the trial court if it is evident that it acted on a wrong principle or ovcrlookcd some material fact or if the sentence is manifestly harsh and excessive in view of the circumstances. Counsel referred to Kiwalabye Benard v Uganda (supra) and Kyalimpa Edward v Uganda SCCA No. 10 of 1995. It was counsel's submission that the trial judgc took into consideration the mitigating factors and pcriod spcnt on rcmand beforc' senten 15 20 ^C b'

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Counsel submitted that this court in Biryomunsi Alex v Uganda CACA No. 464 ol2O1,6 restated the position in Katureebe Boaz & Anor v Uganda SCCA No. 066 of 2011, where it was held thaU

5 "Consistency in sentencing is neither a mitigating nor an aggravating factor, the sentence imposed lies in the discretion of the court which in exercise thereof may consider sentences imposed in other cases of ^a similar nature,"

Counsel contended that reliance on consistency to tamper with thc sentencc meted out by a trial judge in itself is intcrfcrcnce with the discretion of the trial judge. It was counsel's submission that there can hardly be consistency in the sentences when each case presents its own unique facts that arc distinguishable. Counsel added that diffcrent pancls have stipulated varying ranges of what they deem appropriatc in exercisc of powers pursuant to S. 11 of the Judicature Act.

Counsel cited Akbar Hussein Godi v Uganda CACA No. 52 of 2011 in which the appellant murdered his wife, and this Court upheld a sentc'nce of 25 years' imprisonmcnt. 15

He also referred to Nkurunziza Robert v Uganda CACA No. 539 of 2075, where the appellant was convicted of murde'r by strangulation and this

honourable court substituted a sentence of life imprisonment with ^a sentence of 28 years' imprisonment. 20

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He cited Twinomuhangi Dominic v Uganda CACA No. 347 of 2017 where the appellant was convicted of murder of his wife, and sentenced to 30 years' imprisonment and this honourable court upheld the sentence.

Counsel submitted that a sentence of 25 years' imprisonment was appropriate in the circumstances and he invited this honourable court to $\mathsf{S}$ uphold the same and dismiss the appeal.

#### **Consideration of Court**

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The appellant in this case is appealing against sentence only. We have carefully considered the submissions of Counsel, the record and authorities availed to us.

We are alive to the duty of this court as a first appellate court to reappraise all the evidence at trial and come up with our own inferences of law and fact. (See Kifamunte Henry v Uganda SCCA No. 10 of 1997).

We are cognisant of the fact that we cannot interfere with the sentence imposed by the trial court which exercised its discretion unless the sentence is illegal or is 15 based on a wrong principle or the court has overlooked a material factor or where the sentence is manifestly excessive or so low as to amount to a miscarriage of justice.

(See Kamya Johnson Wavamuno v Uganda SCCA No. 16 of 2000 and Livingstone Kakooza v Uganda SCCA No. 17 of 1993). 20

In this appeal, counsel for the appellant contended that the sentence of 25 years' imprisonment was not only illegal but was also out of the

sentencing range for similar offcnccs. We havc had the opportunity to rcappraise the sentence passed by the learned Trial Judge when she ruled that;

5 "... The offence carries a maximum sentence of death however since the convict opted to plead guilty, I will start consideration of the sentence of 25 years imprisonment as a starting point and then add or subtract according to the aggravating and mitigating factors. The convict killed someone close to him in cold blood; I add 3 years to the sentence making it 28 years imprisonment. Looking at the nature of weapon used

- 10 the victim was stubbed with a knife the intension was not to injure but to kill since she was stabbed several times in the neck, I add 3 years making it 31 years. I will then look at the mitigating factors. Remorsefulness, the convict realises his mistake almost immediately and has convinced court that he has reformed, I reduce 5 years from the - 31 leaving a balance of 25. The period you have spent on remand, you have spent 2 years and nine months I will reduce 3 years, therefore leaving a balance of 23 years. However, I am still considering the circumstances of the case, the pre-meditated nature of this crime, you went to her brother's place and pretended that you wanted your wife 15 - back, you followed her to church where she was on overnight prayers and convinced her that everything is okay to come back home, meanwhile you had in your possession a knife so you deliberately wanted to kill her. So therefore I add 2 years making a total and you are going to serve a sentence of 25 years imprisonment..." z0 - 25

We find that the trial Judge considcred both mitigating and aggravating factors in her sentence strucfurc. We shall now move to considcr the sentences passed in previous convictions of murdcr.

The Supreme Court in Aharikundira v Uganda SCCA No. 27 of 2015 underlincd the duty of this court while dealing with appcals reg with cases that have similar facts 30 sentencing to ensure consistency ardin

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Consistency is a vital principle of a sentencing regime. It is deeply rooted in the rule of law and requires that laws be applied with equality and withou t unjustifiable inconsistency.

- The Appellate courts have now considered the issue of consistency in sentencing. In Turyahika Joseph v Uganda CACA No. 327 of 2014, this Court emphasized that sentences ranging from 20-30 ycars are appropriate in cases involving murdcr unless thcrc are exccptional circumstances to warrant a highcr or lesser scntence. - In Anywar Patrick & Anor v Uganda CACA No. 156 of 2009, this Court set aside a sentencc for life imprisonment imposed on the'appellants for the offence of murder and substituted it with a sentence of 19 years and 3 months imprisonment. In Mbunya Godfrey v Uganda SCCA No. 4 of 2011, the Supremc Court set asidc the dcath sentcncc imposed on the appellant for thc murder of his wife and substituted it with a sentencc of 25 years' imprisonment. In Tumwesigye Rauben v Uganda CACA No. 181 of 2013, the appellant was sentenccd to 40 years' imprisonmcnt for t0 15

murder and on appeal; the sentence was reduced to 20 years imprisonment.

Relatedly, in Atiku Lino v Uganda CACA No. 41 of 2009, the appellant was sentenced to life imprisonment and on appeal the sentence was reduced to 20 years' imprisonment. In Twinomuhangi Dominic v Uganda (supra), the appellant was convicted of murdcr of his wife and sentenced to 30 years' imprisonment and this Honourable Court uphcld 20 M the sentence.

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Having studied the above authorities, thc fact that the appellant pleadcd guilty, and the need to maintain consistency, we do not find the sentencc of 25 years harsh or cxcessivc. It fell within thc range of scntcnces as discussed above. We also find that the trial Judge took into consideration the time the appellant has spent on remand.

As a result, we find no reason to interferc with thc decision of the trial judge. The appellant will continue to serve his sentence of 25years imprisonment.

The appeal is accordingly, dismissed.

lr Dated at Kampala this....l .f Day of 2023.

Hon. Lady |ustice Elizabeth Musoke ]ustice of Appeal

Hon. Lady justice Catherine Bamugemereire Justice of Appeal

Hon. Mr. Justice Stephen Musota ³⁰ Justice of Appeal