[2024] UGCA 306

### ⁵ THE REPUBLIC OF UGANDA

# IN THE COURT OF APPEAL OF UGANDA AT MBARARA

(Coram: Bva K. Luswata, JA, Oscar Kihika, JA, Dr. Asa Mugenyi, JA)

# CRIMINAL APPEAL NO. 0595 of 2O15

BETWEEN

MUHANGI OBED: : : : : : : : : : : : : :: : : : : : : : : : : : : : : : : : : : : : : : : : : : : : : : : : : : : : : : APPELLANT

#### AND

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

[Appeal from the Judgement of High Court sitting at Mbarara in

Criminal Session Case No. O35 of 201l by Hon. Justice J. W.

David Matovu delivered on 24tn July, 2014]

#### JUDGMENT OF THE COURT

# Introduction

1l The Appellant was charged with murder contra-ry to Section 188 and 189 of the Penal Code Act, Cap 128. The Appellant was indicted, convicted and sentenced to 50 years' imprisonment. It was stated in the indictment that Muhangi Obed in the month of June 2O10 at Lugazi Cell in Mbarara District, murdered Arinaitwe Jaduresi. 20 25

### Brief facts

2l The brief facts of the case as discerned from the record ofthe lower court are that, during May 2O10, the Appellant approached Yoram Bwozi the husband of Arinaitwe Jaduresi (now deceased) and informed him that he could take his wife to a native doctor in Mbarara for treatment of a stomach ailment. The Appellant, Bwozi

1,

- 5 15 20 and the deceased proceeded to Mbarara where Bwozi rented a room in Kizungu, Mbarara Municipality. Once settled in that room, the Appellant informed Bwozi that he would take the deceased to the doctor and that Bwozi should go back and collect coffee beans and 200,000/= as per the native doctor's request. Bwozi returned to their village and after six days returned to Kizungu with Shs. 2OO,OOOI= and coffee beans which he handed over to the Appellalt in the presence of the deceased. During the same visit, the Appellant informed Bwozi that the doctor had changed his mind and requested for Shs. 2,OOO,OOO/= instead. Bwozi returned to the village to get that sum and returned to Kizungu after about one month with Shs. 2,OOO,OOO/= that he also gave to the Appellant. At that visit Bwozi did not find the deceased and upon his inquiry, the Appellant informed him that the native doctor had taken her to Kamp al,a. Bwozi who was not convinced by that explanation returned home where the deceased's relatives and his other wives, demanded to know her whereabouts. - 3l Bwozi returned to Mbarara but did not find the Appellant in Kizungu for he had hidden himself. With the help of several people, Bwozi mounted a search for the Appellant and after about one week, he was traced in a lodge in Mbarara town. The Appellant was arrested and kept in custody at Mbarara. Bwozi was also arrested and while both men were in police custody, the Appellant confessed to having killed the deceased; and buried her at Lugazi. Sometime during June 2010, the deceased body was found by

- herdsmen near River Rwizi. Bwozi identified the body. Still while in police custody, the Appellant recorded a confession statement in which he admitted killing the deceased. He also led Bwozi and the police to the place where he had buried the deceased body and it was at the same place that it was found in advanced stages of decomposition. The Appellant was charged with murder, and during his trial, he contested the charge and caution statement. The Judge conducted a trial within a trial and admitted it. Following a full trial, the Appellant was convicted and sentenced as stated. 10 5 - 4l The Appellant being aggrieved with the decision of the High Court lodged an appeal premised on three grounds set out in the Memorandum of Appeal as follows:- - The learned tial Judge erred in lau and fact when he failed to adequatelg eualuate all the mateial euidence, charge and caution statement, adduced therebg coming to urong conclusion that the Appellant was guiltg of murder. 20 ¹ - 11. The learned trial Judge erred in law and fact when he sentenced tle Appellant to imprisonment for 5O years uhich is manifestly harsh, unfair, unconscionable and excessiue in the circum-stance s. 25 - The learned tial Judge ened in latu and fact when he imposed an illegal sentence of 5O gears' impisonment on the 30 ll1.

⁵ Appellant rttittaut consideing the period spent on remand, therebg occasioned a miscarriage of justice.

### Representation

5l At the hearing of the appeal, the Appellant was represented by Ms' Agnes Natukunda who filed written submissions and a rejoinder on his behalf. On the other hand, Mr. Sam Oola, a Senior Assistant Director of Public Prosecutions (DPP) represented the Respondent and filed written submissions on its behalf. We allowed the prayers of both counsel to adopt and consider their submissions as their legal arguments in the appeal. We in addition considered authorities they liled and more sourced by the Court.

# Submissions of counsel

### Ground one

6] Citing Section 24 of tine Evidence Act, Ms. Natukunda submitted that the trial Judge erred when he admitted a charge and caution statement (hereinafter statement) that was procured involuntarily. She referred specificatly to the Appellant's testimony that he was severely beaten before being forced to sign a paper whose contents he was unable to understand. That the Court acted in error to admit the statement during the proceedings of the trial within ^a trial when it was clearly challenged by the Appellant. That infact, both PW4 and PWS testified to the fact that the Appellant confessed after being beaten which corroborated the Appellant's testimony that he was routinely beaten with canes on a daily basis. Counsel emphasized that since the Appellant was arrested around during July, 2010, and signed the statement on 18tr'

# 25

- ⁵ August, 2010, it is a clear indication that he was tortured for a long time and also forced to sign a statement that was already prepared. - 7] Ms. Natukunda contended that relying on such a charge and caution statement was an irregularity especially where there was no direct evidence to place the Appellant at the scene of crime. To emphasize that point, she submitted that there was no eye witness to the offence and the deceased's body was discovered in advanced stages of decomposition. - 8] Counsel cited the case of Matovu Musa Kassim vs Uganda, Criminal Appeal No. 27 of 20.23 which considered the law governing retracted and repudiated confessions as set down in Tuwamoi versus Uganda 11967l EA 84. Counsel submitted that a-fter the trial Judge having found that the charge and caution statement was voluntarily made by the Appellant and stated that the reasons for his findings would be incorporated in the main judgment. - 9] In conclusion, Ms. Natukunda prayed that the conviction be quashed and the sentence be set aside. - 10] In response, Mr. Oola conceded as true that PW4 testified that the Appellant was beaten by the police in his presence, since PW4 had also been detained as a suspect in the killing of the deceased. However, that although PWS stated in cross examination that the Appellant was beaten prompting him to confess his evidence was that he was not present when the Appellant was beaten.

- ⁵ 11] That in contrast, PW7 explained the process he adopted when recording the statement from the Appellant. Further that, having conducted a trial within a trial, the trial Judge who considered PW7 a truthful witness, was correct to admit the statement as one that was made voluntarily by the Appellant. Mr. Oola drew our attention to the testimony of PW7 that after recording the statement, he read it back to the Appellant, who signed it after which he countersigned it. In cross examination, PW7 testified that the Appellant did not tell him he had earlier been beaten by another police officer. Mr. Oola contended then that if the Appellant had been beaten before recording the statement, it was by other persons but not PW6 who presented him to PW7 to record his statement. Counsel cited the decision of Tuwamoi vs Uganda (supra) in that regard. 10 15 - 12] Mr. Oola submitted further that apart from the statement, the Judge considered other independent evidence to convict the Appellant. In particular, that the contents of the charge and caution statement fit very well with the evidence given by other witnesses especially PW3, PW4 and PWS and PW6. Counsel a,lso referred to the conduct of the Appellant when he took the deceased to a place where he knew there was no doctor, and demanded for colossal sums of money from PW4, well knowing it was for his personal gain. Further, he denied knowledge where the deceased could be found which depicted conduct of a guilty person. Additionally considered, was the untrue statement by the Appellant that he was arrested from his village in Kacwumbe cell yet PW4 and PWS testified that he was arrested from his hideout 20 25

- ⁵ at a lodge in Mbarara town. Therefore that, even without the Appellant's confession, the other pieces of circumstantial evidence relied on by the trial Judge was sufficient to convict the Appellant for the offence of murder. For guidance, counsel cited the case of Simon Musoke vs R (1958) E. A 715 that explained when a Court can rely on circumstantial evidence to convict. 10 - 13] In conclusion, counsel submitted that the pieces of circumstantial evidence put together lead to no other hypothesis than the fact that it was the Appellant who killed the deceased.

# Appellant's submissions in reioinder.

14] In rejoinder, Appellant's counsel submitted that PEX3, the medical report was recorded on 18th August, 2010 while the Appellant was medically examined on 23'd August, 2010. She pointed to the fact that the age of the Appellant in PEX 3 and PEX8 differ as PEX8 indicates the age of the Appellant as 19 years, yet PEX3 indicates the age of the Appellant as 18 years. Her point of contention was that there is a likely hood that the Appellant was a juvenile at the time of commission of the offence, an important fact that the Judge omitted to consider before relying on a statement that depicted a wrong age of the Appellant. Ms. Natukunda concluded by praying that the Appeal be allowed. 15 20 25

# Analvsis and decision of Court.

15] We have carefully studied the record, considered the submissions for either side, as well as the law and authorities cited to us, and those not cited but which we find relevant to this matter. We are

⁵ aiive to the duty of this Court as a first appellate Court to review the evidence on record and reconsider the materials before the trial Judge, including the decision of the trial Court, and then come to our judgement. See: Rule 3O(11(a) of the Judicature (Court of Appeal Rules) Directions S. I 13-lO. We do agree and follow the decision of the Supreme Court in Kifamunte Henry vs Uganda, SC Criminal Appeal No. 10 of L997, where it was held that on a first appeal, this Court has a duty to;

> " ... reuietu the euidence of the case and to consider the mateials before the trial Judge. The appellate court must then make up its own mind not disregarding th.e judgement appealed from, but carefullg u.teighing and considering it."

161 In the first ground, the Appellant contests the manner in which the trial Judge evaluated the material evidence. We note from Ms. Natukunda's submissions that the main contest is with the decision of the Judge to rely on a charge and caution statement that the Appellant repudiated during the trial as being one that he was forced to sign without reading, or understanding its contents, and after being tortured by the police. In counsel's view, admitting the statement into evidence was a grave error and resulted into a wrongful conviction. Respondent's counsel disagreed. Mr. Oola submitted that the police followed the correct procedure when recording the statement and the evidence that the Appellant was tortured, was not convincing. For that reason, the statement was properly adduced and admitted. That even without the statement, there was other circumstantial but incriminating evidence that the Judge relied on to convict the Appellant.

17] Appellant's counsel correctly relied on Section 24 of the Evidence $\mathsf{S}$ Act Cap 6. It provides that:

> "A confession made by an accused person is irrelevant if the making of the confession appears to the court, *having regard to the state of mind of the accused person* and to all the circumstances, to have been caused by any violence, force, threat, inducement or promise calculated in the opinion of the court to cause an untrue confession to be made."

## 18] According to the **Halsbury's Laws of England**¹: 15

"In any proceeding, a confession made by an accused may be given in evidence against him in so far as it is relevant to any matter in issue in the proceedings and is not excluded by the court in pursuance of the following provisions. If in any proceedings where the prosecution proposes to give in evidence a confession made by an accused, it is represented to the court that the confession was or may have been obtained by oppression of the *person who made it; or in consequence of anything said* or done which was likely in the circumstances existing at the time, to render unreliable any confession which might be made by him in consequence thereof, the court may not allow the confession to be given in evidence against him. Except in so far as the prosecution proves to the court beyond reasonable doubt that the

^&lt;sup>1</sup> Fourth Edition, Volume 11(2), Para 1124 at page 938

## ⁵ confession, notwith.standing that it mag be true, utas not so obtained."

- 191 The case against the Appellant consisted of his confession which was recorded on 18tn August, 2010. When he retracted the confession during the trial, the Judge conducted a trial within a trial to ascertain its voluntariness. - 20] During the tria-l within a trial (TWT), the prosecution witness TWT 1 Detective Inspector Ttrryagumisiriza David testified that he was approached by Detective Corporal T\-rryagenda to record a charge and caution statement of the Appellant which he did after cautioning him and after establishing that he had understood the caution. The Appellant signed the statement and TWT 1 counter signed it. TWT 1 further testified that the Appellant was in a good mood, he raised no complaints whatsoever and made the confession willingly. In cross examination, TWT 1 testified that he looked at the Appellant's face before taking the confession. He was able to observe that the Appellant was not hand cuffed and that he did not put him under the chair. Lastly, he testilied that the Appellant did not inform TWT 1 that he had earlier been beaten by his colleagues, the other police officers. - 2ll In his defence to the charge, the Appellant objected to the testimony of TWT 1 and testified that before 18th August, 2010, he had spent two months in prison being beaten on a daily basis by the Kiboko squad that comprised of Milton, a black skinned man and Simon PRU. That he endured a daily dose of canes with hand cuffs on his hands. He continued that he made the statement at 25 30

- ⁵ night when handcuffed. That one Milton brought him certarn papers to sign. He admitted that the signature on the statement was his but stated he was forced to sign as he does not recall what happened on that day. - 221 In his judgement, the trial Judge believed Detective Inspector Ttrryagumiriza David as a truthful witness. Conversely he disbelieved the Appellant as one telling lies. He ruled that the accused made his charge and caution statement on 18th August, 2010 voluntarily, and accordingly admitted it in evidence and then relied on it in his judgment to convict the Appellant. 10 - 231 The Court of Appeal of East made an attempt to dehne a retracted statement. It was stated in T\rwamoi vs Uganda lL967l EA 84, that: 15

"....... a retracted statement occurs uthen the accused person admits that lLe made the statement recorded but nout seeks to recant, to take back what h.e said, generallg on the ground that he had been forced or induced to make the statement, in other words, the statement was not a uoluntary one."

The same Court added that a trial court should accept ^a repudiated or retracted confession or both with much caution and that although not a rule of law, the court should look for independent evidence corroborate it. In material particular, in Ssekitoleko Yudah Tadeo and.2 others vs Uganda, Criminal Appeal No. 33 of 2014, the Supreme Court held that the onus always remains on the prosecution to prove that a confession was

- ⁵ made voluntarily. The burden never shifts to the accused to prove that it was caused by a.y of the factors set out in S. 24 of the Evidence Act. See also Rashidi vs Republic (1969) EA 138. - 15 241 Evidence on how the statement was recorded can be discerned from the proceedings of the Trial within a Trial and other witnesses. PW4, Yoram Bwozi testilied that he was detained for the Police wanted him to explain the whereabouts of his wife the deceased. That during the night of his arrest and detention, he was beaten up by police officers. That when the police ceased assaulting him, they turned to the Appellant and started beating him in his presence. PW4 testified that the beatings prompted the Appellant to confess that he had killed PW4's wife and that he buried her at Lugazi near a factory of Mr. Mwebesa. In addition, PW5 Ariho Nelson testified in cross examination that the Appellant confessed after a beating by police, that the Appellant confessed in his presence. - 251 The Appellant testified that he had spent two months, and for ali that time, he was beaten on a daily basis with canes. He identified those who assaulted him on the instructions of one Sam (most probably PW6) as the "Kiboko squad" that comprised of Milton and Simon. He further testified that he was forced to sign the statement at about 7pm. Conversely, TWT1, Detective Inspector Ttrryagumisiriza David who recorded the charge and caution statement, testified that he followed the correct procedure of obtaining a statement during which the Appellant who was not handcuffed and in a good mood, raised no complaint. In his view,

- ⁵ the Appellant recorded the confession willingly. He added finally that the Appellant did not inform him that he had earlier been beaten. He finally stated that the Appellant was not handcuffed or put under a chair. - 26] Having perused the record, there is strong evidence that the charge and caution statement was procured by use of threats and violence. There was evidence of both the prosecution and defence witnesses to support that fact. The Appellant testifred that while in police custody, he was beaten before signing the statement, he even named some of those who assaulted him. It is conceivable that PW4 was present and witnessed that assault. The latter testified that he was arrested together with the Appellant on the assumption that he participated in the deceased's disappea,rance. Although PW4 did not witness Detective Inspector T\rryagumisiriza David assaulting the Appellant, it is suflicient that he saw certain police officers assaulting the Appellant. It is enough that the Appellant was assaulted while in police custody, and that violence and intimidation must have induced him to confess participating in the disappearance and murder of the deceased. Those facts tainted the entire process during which the statement was recorded and the trial Judge should not have admitted it into evidence after its retraction. Relying on the statement certainly prejudiced the defence and resulted into a miscarriage of justice. We would for that reason disregard the evidence of the charge and caution statement as incriminating evidence that could be used to convict the Appellant. 15 20 25 30 10

- 5 271 The above notwithstanding, Respondent's counsel submitted that beyond the statement, the trial Judge relied on other evidence to arrive at a conviction. Admittedly, all other evidence would be circumstantial because there was no eye witness to the deceased's murder. - 28] Circumstantia-l evidence has been severally dehned. In People vs Bretagna, 298 N. Y. 323, 325 (1949) it was stated to be: 10

"....... direct euidence of afactfrom uhich a person maA reasonablg infer the exi.stence of another fact. A person's guilt of a charged cime mag be prouen bg circumstantial euidence, if that euidence, while not directlg establishing guilt, giues rise to an inference of guilt beyond reasonable doubt. "

In the case of Iwutung Stephen vs Uganda, Criminal Appeal No. OO2O of 2016, this Court, while discussing the principles on circumstantial evidence, stated as follows:

> "The laut on circumstantiql euidence has a common law origin. In Hodge's Case (1838), 2 Leuin 227, 168 E. R. ¹136, a ntle on circumstantial euidence tuas articulated to the effect that u.there a case is based on ciraimstantial euidence, before conuicting an accused person upon such euidence, the Court must be satisfied not only that the circumstances are consistent tuith a conclusion that the ciminal act was committed bg the accused person, but also that the facts are such as to be inconsistent tuith ang otLrcr rational conclusion than that the accused is the guiltg person.

## The East African Court of Appeal made a similar finding in **Simoni** Musoke vs. R [1958] 1 EA 715 that:

"...in a case depending exclusively upon circumstantial *evidence, (the Court) must find before deciding upon conviction that the inculpatory facts were incompatible* with the innocence of the accused and incapable of explanation upon any other reasonable hypothesis than that of guilt."

## In Tindigwihura Mbahe vs Uganda Criminal Appeal No. 9 of

**1987**, this Court issued a warning that: 15

> "Circumstantial evidence must be treated with caution," and narrowly examined, because evidence of this kind can easily be fabricated. Therefore, before drawing an inference of the accused's quilt from circumstantial *evidence, there is compelling need to ensure that there* are no other co-existing circumstances which would *weaken or altogether destroy that inference.*"

29] According to the record, the circumstantial evidence adduced by the prosecution was majorly the testimonies of PW4, PW5 and $25$ PW6 about events before and after the deceased's body was discovered. PW4 testified that the Appellant offered to take the deceased to a doctor in Mbarara to receive treatment for a recurrent stomach pain. Both men travelled to Mbarara for that purpose and PW4 rented a room in Kizungu Mbarara Municipality 30 for them to stay in while the deceased received treatment. Once settled in, the Appellant promised to take the deceased to the doctor and then requested PW4 to return to the village and collect Shs 200,000/ $=$ and coffee beans for the doctor's fee. PW4 testified

$\mathsf{S}$

- ⁵ that he bid those instructions but when he returned with the coffee beans and money, he was unable to see the deceased and the Appellant informed him that the native doctor had instead requested for Shs. 2,000,000/= as his fees. PW4 handed over the money on both occasions but when he inquired about the deceased, the Appellant informed him that the doctor had taken her to Kampala. PW4 returned home quite unhappy and gave an update to his sister in law and his other wives, who also inquired about the deceased whereabouts. That after one week, the Appellant went into hiding and a-fter a long search, he was found hiding in a lodge in Mbarara Town. The deceased was later found dead and near the Rwizi River. PWS supported much of that evidence and both men along with PW6, were present when the Appellant pointed out to them the place where he had buried the deceased's body. 10 15 - 30] The above evidence strongly points to the Appellant's involvement in the deceased's death. He hatched a plan to gain access to the deceased by suggesting to PW4 her husband, that he could take her to a native doctor for treatment. Both men travelled together with the deceased to Mbarara, and the Appellant was left with the deceased in the room PW4 had rented. The Appellant again devised another story directing PW4 to leave Mbarara and return to the village two times. The second time PW4 returned to Mbarara, he did not find the deceased and the Appellant lied to him that the native doctor had picked her up and taken her with him to Kampala. The deceased was never seen alive again. In Bagatenda Peter vs Uganda, Criminal Appeal No. 1O of 2o,o6, 20 25 30 - the Supreme Court considered the fact that the Appellant knew $\mathsf{S}$ where the deceased's body and murder weapon were buried to conclude that he had participated in killing the deceased. Likewise in this case, the Appellant who pointed out to others the place the deceased's body was found, must have participated in same manner in killing the deceased. - 31] In addition, the evidence of PW4 and PW5 bring into application the "*last seen*" principle. This Court applied this principle in the case of Jagenda John vs Uganda, CA Criminal Appeal No. 001 of 2011, UGCA 25. It was held that:

"Applying "the last seen doctrine" which has global application to homicides, our view is that, this doctrine creates a rebuttable presumption to the effect that the person last seen with a deceased person bears full responsibility for his or her death. See also **Abuha in** Tajudeen Iityasu vs The State SC 24L 120LA and Uganda vs Nakanwagi Fauza and 5 others, Criminal Session Case No. 243 of 2015."

32] The unrebutted facts are that during May, 2010 when PW4 took coffee beans and the Ugx, $200,000/$ = to the Appellant, he found 25 his wife in the house in Mbarara. He left them together on the Appellant's prompting that the native doctor needed more money. PW4 went back to the village and when he returned after one month, he did not find the deceased and the Appellant explained that the native doctor had taken her with him to Kampala. That 30 evidence was corroborated by PW5, Ariho Nelson, the deceased's son who confirmed that the deceased had a stomach ailment and he was present when PW4 his father, and the Appellant took her

- to see a doctor in Mbarara. That he later rung the Appellant to $\mathsf{S}$ check on the deceased and the Appellant informed him that the deceased had gone to Kampala to see her sister, but that story was refuted by the deceased's sister. The Appellant changed that narrative to report that the deceased had gone to Kalangala, but she could not be traced there either. Following the testimony of 10 those two witnesses, the Appellant, the person last seen with the Appellant when alive, was under an obligation to explain where she could be found or who had caused her demise. We find that the Appellant did not rebut that inference. - There is also unrebutted evidence that when PW4 and the 15 33 deceased's relatives relentlessly demanded for her whereabouts, the Appellant left the village, returned to Mbarara and then went into hiding. PW4 testified that with the help of some village mates, he searched for the Appellant until they found him registered at a lodge in Mbarara Town, from where he was arrested. Again, that 20 could not be depicted as innocent behaviour. The Court of Appeal in Ayikanying Charles vs Uganda, Criminal Appeal No. 08 of 2012 [2016] UG-CA 87 cited with approval in Remegious Kiwanuka vs Uganda, Criminal Appeal No. 41 of 1995, the Supreme Court observed that; 25

"The disappearance of an accused person from the area" of a crime soon after the incident may provide corroboration to other evidence that he has committed the offence. This is because such sudden disappearance from the area is incompatible with innocence of such a person."

- Further, the Appellant gave a fal se testimony that he was arrested at Kacwembe Cell, Mabira Parish, Rwanyamahembe Sub County in Mbarara District. The more credible evidence provided by PW4 was that he was arrested from a lodge in Mbarara Town. Thus it was correct for the trial Judge to consider the conduct of the Appellant as dubious. 10 - 341 In our view, all the above circumstantial evidence when pieced together would give a strong inference that it was the Appellant and no other who caused tl,e death of the deceased. Even without his statement, it was strong and credible evidence pointing to his participation in the offence. Based on the above analysis, we agree with the Judge that there was proof beyond reasonable doubt that it was the Appellant who caused the death of the deceased. - 351 Accordingly ground one of the appeal fails.

#### Submissions on Ground two and three

361 As a precursor to her submissions, the Appellant's Counsel stated the principles upon which an appellate Court may interfere with a sentence passed by a trial court. She referred to Kyalimpa Edward vs Uganda, SC Criminal Appeal No. 10 of 1995 and R versus Haviland, (19831 5 Cr. App R (S) 1O9 in that regard. In her view, a custodial sentence of 5O years' imprisonment was manifestly harsh and excessive especially when the principle of consistency in sentencing was not applied. Counsel referred to the cases of Aharikundira Yustina vs Uganda, SC Criminal Appeal No.27 of 2Ol5 and Atukwasa Jonan & 6 Ors vs Uganda CA 20 25

- ⁵ Criminal Appeal No. 168 of 2O18 and then offered a number of decisions to illustrate the consistency principle. - 3711 Ms. Natukunda for example cited Suzan Kigula vs Uganda, HCT -OO- CR- SC -0115 (in mitigation) where the accused was sentenced to 20 years' imprisonment for cutting her husband to death with a panga. She in addition cited Uganda vs Uwera Nsenga, Criminal Appeal No. 312 of 2OL3, in which an Appellant who caused the death of her spouse by running over him with a car was sentenced to 2O year's imprisonment. - 38] Counsel concluded with a prayer to persuade the court to consider a sentence of 5O years' imprisonment as a violation of the principles of sentencing the invited the Court to invoke its powers under Section 11 of the Judicature Act to set it aside. - 39] On ground 3, Ms. Natukunda submitted that failure by the trial Judge to make an arithmetica-l deduction of the period that the Appellant had spent on remand makes the sentence illegal. In her view, merely considering but not deducting the three years on remand would be applying the principle followed in the former sentencing regime prior to the Supreme Court decision of Rwabugande Moses vs Uganda, Criminal Appeal No. 25 of 2OL4. In that case, where it was made a mandatory requirement that the remand period is arithmetically confirmed and then deducted from the final sentence. 20 25

#### 5 ResDondent's submissions on grounds two and three

- 40] In response, Respondent's counsel concurred with Appellant's counsel on the principles governing circumstances in which the Appellate Court can interfere with a sentence passed by a trial Court. However, he contested the submission that a sentence of 50 years' imprisonment was excessive in the circumstances. Mr. Oola considered the Appellant as a cunning and deceptive person who lured the deceased and her husband away from their home under the pretext that he was taking them to a native doctor who could treat the deceased. In the process, he obtained Shs.2,200,000/= from the deceased's husband who had to sell his piece of land to raise the money. In his view, a sentence of death or at least life imprisonment would in fact have been more deserving in view of the gruesome, ferocious, ruthless and coldblooded manner in which the Appellant committed the offence. - 41] Mr. Oola continued that bearing in mind the consistency principle, the sentence given was not excessive. He likewise supplied several cases to illustrate the point. He cited for example, Ssemaganda Sperito & Another vs Uganda, CA Criminal Appeal No. 456 of 2OO6, where this court upheld a sentence of 50 years'for two men who killed their brother by stabbing him in the abdomen and cutting up his intestines. Also, Kato Kajubi Godfrey vs Uganda, SC Criminal Appeal No. 2O of 2Ol4 where the Appellant was involved in the murder of a young boy whose private parts were severed and body was decapitated, the appellant was sentenced to

- ⁵ life imprisonment. In Kaddu Kavulu Lawrence vs Uganda, SC Criminal Appeal No. 72 of 2O18, this court allowed to substitute a death sentence with that of life imprisonment for an Appellant who killed a man with a panga. The Supreme Court confirmed that sentence. In counsel's view, a sentence of 50 years' imprisonment would not be harsh or excessive in the circumstances. - 421 ln response to ground three, Respondent's counsel considered his learned friend's submissions as misconceived because the Appellant's conviction and sentence was rendered prior to the decision in Rwabugande's case, and as such, the principle in the latter would not be applicable here. For further guidance, counsel refereed to Abelle Asuman vs Uganda, SC Criminal Appeal No. 65 of 2OL6. He concluded that the trial court could not be bound by a decision that was not in existence at the time it passed the sentence against the Appellant.

### Appellant's submission in reioinder

431 In rejoinder, Appellant's counsel drew our attention to the charge sheet dated 241O8/2O|O, the charge and caution statement dated 1ol8/2010 (PEx8), and PF24A (PEx3) dated 23/8/2OlO, where the Appellant's age was interchangeably recorded as being 19 or18 years. That in light of such a discrepancy, the Judge should have rejected PEX8 a-ltogether or at least, considered the Appellant as being a juvenile at the time he offended. She continued that faced with such conflicting documentation, the Judge ought to have sought clarilication from the Appellant or ordered for his medical examination which he did not do. Further

- ⁵ that, the legal burden lay on the prosecution to prove that the Appellant was 18 years and therefore an adult and that the apparent discrepancies create doubt whether the Appellant was an adult at the time the offence was committed. In her view, since such a doubt should have been resolved in the Appellant's favour. - 441 Counsel concluded that given the age of the Appellant, the sentence of 5O years' imprisonment was harsh and excessive in the circumstances. She cited the case of Niwagaba Didas & Anor vs Uganda, Consolidated Criminal Appeals No. O565 and O587 of 2O15 where issue was raised with regard to an Appellant's age. The Court decided to afford the Appellant the benefit of doubt to consider the Appellant as one aged 18 years at the time he offended and thereby ordered for his immediate release. Counsel invited the Court to consider similar treatment for the Appellant in this case. 10 15

# 20 Analysis and deeisiq4 qlqout]!

45] The contest raised in grounds two and three is on the sentence of 5O years' imprisonment. the Appellant contested the sentence on two fronts. Firstly, that it was manifestly harsh and excessive because no regard was made to the consistency principle or his age. Secondly, that the trial Judge omitted to deduct the remand period. The settled legal position is that an Appellate court's powers to intervene and set aside a sentence is limited. The decisions provided by appellant's counsel are instructive on this point. This Court in the decision of Olar Joseph Peter vs Uganda, ³⁰ CACA No. 3O of 2O1O that cited with approval the earlier decision

## ⁵ of Kiwalabye Bernard vs Uganda, SCCA No. 143 Of 2OO1 held as follows:

"The appellate court is not to interfere tuith sentence imposed bg the tial court where the tial court exercised its discretion on sentence, unless the exercise of that discretion is such that it results in the sentence imposed to be manifestly excessiue or so lou-t as to amount to a miscarriage of justice, or u.there the tial court ignores to consider an important matter or circumstance tuhich ought to be considered while passing the sentence or where the sentence imposed is wrong in pinciple. "

Since ground three raises an issue of legality of sentence, we shall address it hrst.

- 461 In ground two and three, we agree with Appellant's counsel and Respondent's counsel that in the exercise of its discretion, the gist of this case is that the trial Judge failed to consider the period the Appellant spent on remand at the time of imposing the sentence. 20 - 25 30 471 lt is the Appellant's case that the trial Judge only considered but did not apply the legal principle that the period spent on remand must be arithmetically and determined, and then deducted from the linal sentence. That as a result, the Judge imposed an illegal sentence. Counsel for the respondent disagreed and submitted that the sentence was imposed prior to the decision in the Rwabugande (supra) case, and hence Rwabugande (supra) could not be applied retrospectively. - 48] After perusing the sentencing order that the trial Judge did make reference to the remand period. He stated in part that "..... He is

- sentenced to imprisonment of fifty (50 years) and this sentence has $\mathsf{S}$ *considered the period spent on remand.*" Counsel for the Appellant asserts that the trial Judge ought to have deducted the period spent on remand from the sentence of 50 years imposed on the Appellant. However, in her submissions she appeared to appreciate that the principle set out in **Rwabugande** would only 10 apply to cases that came after it. - 49] It is provided in Article 23(8) of the Constitution that: $\frac{49}{100}$

"Where a person is convicted and sentenced to a term of imprisonment for an offence, any period he or she spends in *lawful custody in respect of the offence before the completion* of his or her trial shall be taken into account in imposing the *term of imprisonment.*"

The interpretation of the Supreme Court in **Rwabugande Moses** (supra) was that sentencing courts are to arithmetically determine $20$ and then deduct the remand period prior to conviction and then deduct it from the final sentence imposed. **Rwabugande Moses** was decided on 3^rd March 1997 and the sentence here was imposed on 24^th July, 2014. The same court in **Sebunya Robert** & Another vs Uganda, SC Criminal Appeal No. 58 of 2016, $25$ following **Karisa Moses versus Uganda, SC Criminal Appeal No.** 23 of 2016 clarified that the decision in **Rwabugande (supra)** does not have any retrospective effect on sentences that were passed before it. Therefore, the authority of **Rwabugande (supra)** would not apply in the circumstances. Prior to the **Rwabugande** 30 **(supra)** decision, the position was that the trial Judge was only required to demonstrate by stating on record, that the Court had

- taken into account the period spent on remand. See for example, Kizito Senkula vs Uganda, Criminal Appeal No. 24 of 2OO 1 and Kabuye Senvawo vs Uganda, Criminal Appeal No. O2 of 2OO2. The Judge did so, and as such, he imposed a legal sentence in line with Article 23(B) of the Constitution. 5 - ¹⁰ 501 Therefore, we find no merit in ground three and it fails.

- 511 It was submitted as ground two that while sentencing the Appellant to 5O years'imprisonment, the trial Judge did not have regard to the principle of consistency as he made no reference to any decided cases of a similar nature, and also did not consider the Appellant's youthful age or the fact that he may have offended when still a child. Conversely, Respondent's counsel discounted the fact that the sentence of 50 years' imprisonment was harsh and excessive. In his view, the manner in which the Appellant deceived PW4 and then murdered his wife in a gruesome marner, merited a much more severe sentence. An analysis of the authorities offered by both counsel in comparison to the present sentence, indicated a sentencing range of 20 years to life imprisonment for murders carried out in a similar manner. - ²⁵ 521 We have as an introduction to this analysis, indicated the principles an appellate court can consider before making ^a decision to interfere with a sentence. We have also noted what was considered by both counsel during the allocution proceedings at the trial. Having considered those submissions, the trial Judge ³⁰ ordered as follows:

"It is true the convict is a young man and first offender, but the offence of murder is a very serious one. The convict planned to commit this offence and deceived the family of the deceased from taking her to hospital for proper treatment. The convict killed the deceased in a very brutal way. Even after killing, the convict went ahead to obtain $Uqx$ 2,000,000/= from the husband of the deceased. This court therefore gives the convict a sentence that will deter others from doing a similar *thing. He is sentenced to imprisonment of fifty (50 years)* and this sentence has considered the period spent on remand.

*Right to appeal explained."*

In our view, the trial Judge did consider both aggravating and 53 mitigating factors before arriving at a sentence. It may well be that some mitigating factors were not specifically mentioned, but it is not a rule that the sentencing order should reproduce counsel's submissions. Although the order was a fair consideration of what was submitted in by the allocution proceedings, it is correct as pointed out by the Appellant's counsel, that the Judge did not 25 apply the consistency principle which is an important factor to be considered to ensure that convicts are treated with equality under the law. We hasten to add that not all crimes are identical or committed under exactly the same circumstances, but at least a uniform guide is given under **Paragraph 19 of the Sentencing** 30 Guidelines (Sentencing Guidelines for courts of Judicature) Directions, (Sentencing Guidelines) that the (practice) sentencing range for murder after considering both the aggravating and mitigating factors, is 30 years to death as the

$\mathsf{S}$

maximum sentence. Further previous decisions on the same offence provided by counsel in their submissions would be useful.

54] We have sourced other authorities that seem to suggest that Courts have imposed similar even more severe sentences for murder. For example, in Ssemaganda Sperito & Another vs Uganda, CACA No. 456 of 2OlO, this Court upheld a sentence of 5O years' imprisonment. In Karisa Moses vs Uganda, Criminal Appeal No. 23 of 2016, a 22-year old Appellant was convicted for a brutal murder of his grandfather. The Supreme Court conlirmed a sentence of life imprisonment. In Bahasha Sharif vs Uganda, SC Criminal Appeal No. 82 of 2018, the Supreme Court upheld a death sentence and stated that one of the objectives of sentencing is deterrence. The Court noted the manner in which the Appellant killed a child and dismembered his body which in the Court's view, depicted a depraved person who was devoid of all humanity. In the circumstances, 5O years would be well within the customary range imposed for a murder on the facts given in this case.

55] We note that the Appellant's counsel did in her submissions tn rejoinder raise the issue of her client's age and its possible effect on the sentence. She argued that it was not clear whether the Appellant was aged 18 or 19 years and that discrepancy should be decided in his favor, to persuade this court to impose a more lenient sentence or to consider him a child, and discharge him altogether. We agree, that the Exhibits admitted in court created some discrepancy in the Appellant's age. In the charge sheet of 25 30

- 5 10 15 20 ²⁸l8l2O2O he was described as a male adult of 19 years. In Police Forrn 24 (EXP3) the Appellant was given the same age but the medical officer recorded as part of his findings that he was of the "the apparent age of 78 gears". When presenting his defence on 2l17l2Ol4, the Appellant himself stated that he was 22 years. Unfortunately, neither counsel nor the trial Court took note of those discrepancies which would have prompted the court to make a formal inquiry into the Appellant's age as required under Section lO7 of the Children Act. Being an appellate court, we are unable to open up such an investigation now especially when it was not even a specific ground of appeal. We are also aware that under Section 2 of the Children Act, a child is a person below the age of 18 years. The Appellant provided no concrete evidence that he was below the age of 18 years at the time he offended. Therefore, we cannot consider the prayer of his complete discharge. At best, we consider that he was at the material time, of the relatively youthful age of between 18 and 19 years. - 25 30 561 We are prepared to agree with the Appellant's counsel that youthful age is factor that can be considered in mitigation. Indeed, in previous decisions of this Court, that factor has led to less severe sentences being imposed on appeal. See for example Kungonza Kenneth vs Uganda, Criminal Appeal No. lO9 of 2OlL. In this case, we note that in his sentencing order, the Judge took note of the Appellant's youthful age. He still chose to impose a sentence of 50 years and we consider his decision as justified in the circumstances. The following are our reasons.

- 10 15 571 The facts here depict a premediated murder carried out in a most gruesome manner. The Appellant who killed the deceased with the help of two others meticulously planned the crime. He knew Bwozi and his wife very well and using a fabricated story, lured them to Mbarara where he killed the latter. During that process, he solicited a large sum of money from Bwozi. Bwozi himself was arrested and remained in custody on the false assumption that he was involved in the deceased's disappearance and death. That fact must have exacerbated his anguish and grief. The Appellant who was well aware of Bwozi's innocence, did nothing to exonerate him. - 20 25 581 It was stated by the prosecutor in the allocution proceedings and not rebutted, that a-fter his arrest, the Appellant managed to escape, and was re-arrested after committing another serious crime of aggravated robbery. Although the latter offence would have no direct bearing to the sentence here, those unrebutted facts depict a callous, calculating criminal, who committed murder well knowing its consequences. Although young, he was a hardened criminal, who required a deterrent sentence that would keep him long out of society. Thus, although mitigating factors were presented on his behalf, those greatly paled against the aggravating factors on record. Under such circumstances, his relatively youthful age cannot be raised to shield him. - 30 59] We therefore hnd that the sentence of 50 years' imprisonment was not harsh and manifestly excessive in the circumstances. We

- ⁵ decline to interfere with it. Thus grounds two and three of the appeal fail. - 60] Save that we have found that the Appellant's charge and caution statement was wrongly admitted into evidence, this appeal has substantially failed. It is dismissed and the Appellant shall continue to serve the sentence of 50 years' imprisonment as imposed by the trial Court.

Dated this )e day of 2024. +-,-

V

HON. EVA K. LU JUSTICE O

HON. O KIHIKA JUSTICE O

HON. GENYI JUSTICE OF APPEAL

$\mathbf{,}$ $\mathcal{H}(\mathcal{A})$ $\mathcal{A}^{\mathcal{A}}_{\mathcal{A}}$