[2024] UGCA 259

#### THE REPUBLIC OF UGANDA

### IN THE COURT OF APPEAL OF UGANDA HOLDEN AT MBARARA

*(Coram: Eva K. Luswata, JA, Oscar Kihika, JA, Asa Mugenyi, JA)*

### CRIMINAL APPEAL NO. 183 of 2015

#### **BETWEEN**

**MUJUNI ALEX::::::::::::::::::::::::: .................................. APPELLANT** 10

#### **AND**

UGANDA :::::::::::::::::::::::::::::::::::

## (Appeal from the Judgment of the High Court sitting at Mbarara in Criminal Session Case No. 088 of 2015 by Justice Duncan Gaswaga delivered on 20^th May, 2015)

### **JUDGEMENT OF COURT**

#### **Introduction**

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The Appellant was charged and indicted on his own plea of $1|$ guilty for the offence of murder contrary to Section 188 and 189 of the Penal Code Act, and sentenced to 30 years' imprisonment.

#### **Brief Facts**

2 The Appellant admitted to the following facts at his trial. On the 26^th day of May, 2014, at about 8:00pm, both the Appellant and Bwizire Milton (now the deceased) while at the bar at Omukabogye Trading Centre, picked up a quarrel during which

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the deceased hit the Appeliant with a stick. The Appellant left the bar briefly and when he returned, he resumed f,tghting with the deceased who at some point screamed that the Appellant had killed him. The Appellant fled the scene of crime. A crowd gathered and found a knife stabbed in the deceased's left side of the body. The police were ca-lled and the deceased died shortly thereafter. The postmortem carried out confirmed that the deceased's body had a deep stab wound on his left chest- heart and lungs. Cause of death was damage on those major organs. The Appellant was indicted and convicted for the offence of murder and sentenced as stated. Dissatished with the decision of the learned tria-t Judge, the Appellant appealed to this Court on three grounds that;

- i) The learned trial Judge erred in law and fact when he sentenced the Appellant to a harsh and excessiue sentence get he pleaded guiltg hence occasioning a mis c arriag e of ju stic e. - ii) The learned trial Judge erred in law and fact uhen he did not consider tLrc mitigating factors while sentencing the Appellant hence occasioning a miscarriage of justice. - lli)The learned tial Judge erred in lanu and fact when le did not consider the peiod spent on remand hence occasioning a miscarriage of justice.

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# s Representation

- 3l During the hearing, the Appellant was represented by Mr. Chan Geoffrey Masereka while the Respondent was represented by Mr. Martin Rukundo an Assistant Director of Public Prosecutions. - ¹⁰ 4l Both counsel submitted in their written submissions and lists of authorities as their legal arguments to decide the appeal. The Court adopted the same which we have considered in arriving at our decision.

## Submissions for the Appellant

# 1s Grounds One and T\ro

5l Counsel for the Appellant re-stated the duty of this Court on appeal. He cited the decision in Kifamunte Henry vs Uganda, SC Criminal Appeal No. 10 of 1997. He equally re-stated the law that this Court will only interfere with a sentence if the tria-l court acted contrary to the law or, on wrong principle or over looked a material factor. He relied on Jackson Zita vs Uganda, SC Criminal Appeal No. 19 of 1995 in that regard.

6l Counsel submitted that the sentence meted out to the Appellant was harsh and excessive in the circumstances. He submitted further that courts should try to apply the principle of consistency in sentencing. Taking note of the sentencing range for murder given in the Constitution (Sentencing Guidelines for

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- ⁵ Courts of Guidelines), excessive. Judicature) (Practice) Directions (Sentencing he considered a sentence of 30 years as being - 7l Counsel made reference to numerous previously decided cases for example, Nuwagaba Ridas Turyamubona Francis vs Uganda, consolidated Criminal Appeals Nos. 565 and 587 of 2015, Tandeka Stephen vs Uganda, CA Criminal Appeal No 55 of 2OL7, and Kiryowa John and Another vs Uganda Criminal Appeal No. L27 of 2OL9. The authorities indicated a sentence range of 18 years to 27 years for the offence of murder. He argued then that a sentence of 30 years' imprisonment was in comparison, harsh and excessive because it was not in imposed in uniform with decided cases, which was an error in law. In conclusion, he prayed that this ground of appeal succeeds. 10 15

# 20 Ground Two

8l Counsel for the Appellant a-lso faulted the learned trial Judge for failing to consider the mitigating factors while sentencing the Appellant. He argued that Courts are duty bound under Article 126 of the Constitution to pass sentences that are in conformity with the law, and reflect the values, norms and aspirations of the people. He drew our attention to Guideline No. 19 of the sentencing Guidelines which outlines the need to consider aggravating and mitigating factors before determining a

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⁵ sentence of murder. He a-lso drew our attention to the Supreme Court decision of Aharikundira Yustina vs Uganda, SC Criminal No. 49 of 2O18, which directed that a sentencing court should meticulously consider all the mitigating factors and other pre-sentencing requirements when exercising the sentencing function. That in the same case, the Court espoused that where a trial court omitted to consider the mitigating factors, then the appellate court is clothed with jurisdiction to reconsider that issue on appeal. 10

### Ground Three

9j In this ground of appeal, counsel for the Appellant faulted the learned trial Judge for failing to deduct the period the Appellant had spent on remand. He referred to Guideline 15 of the Sentencing Guidelines, the Supreme Court decisions in Rwabugande Moses vs Uganda, SC Criminal Appeal No. 25 of 2Ol7 and Segawa Joseph vs Uganda, Criminal Appeal No. 65 of 2O16 where it was held that the remand period must be arithmetically determined then deducted from the Iinal sentence. That had the Court followed the law, the Judge would have imposed a sentence of 29 years and 3 months. That as a result of that omission, the sentence was illegal, and Court is enjoined to deduct the remand period and impose a legal sentence. 15 20 25

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⁵ 1O] In conclusion, counsel for the Appellant prayed that this Court be pleased to a-llow the appeal, quash the conviction, and set aside the sentence or in the alternative, reduce the sentence as shall be judiciously determined.

## Submissions for the Resoondent

# 10 Ground One and TWo

- 11] In reply, counsel for the Respondent opposed the appeal contending that the Appellant was convicted for the offence of murder which attracts a death penalty. The learned trial Judge considered both the mitigating and aggravating factors before imposing a term of 3O years' imprisonment, which counsel consider as lenient. Counsel citied this Court's decision of I{.akooza Peter vs Uganda, CA Criminal Appeal No. 42 of 2OL7 in that regard. Counsel argued that the Court exercised its discretion properly after considering all circumstances of the case and therefore, there is no sound reason for this Court to interfere with the sentence. - 12] Furthermore, counsel pointed us to the Third Schedule of the Sentencing Guidelines which provide the sentencing range for murder. He likewise provided several decided cases to demonstrate the consistency principle. Cases cited included for example, Aharikundira Yustina vs Uganda (supra), Baluku David vs Uganda, CA Criminal Appeal No. 585 of 2O15 and, llakooza Peter vs Uganda, CA Criminal Appeal No.42 of

lru - 2017. These cases indicate a sentencing range of30 years to 35 years' imprisonment for murder. - 131 Finally, counsel for the Respondent conceded that the learned trial Judge omitted to account for and deduct the period the Appellant had spent on remand as required under Article 23(8) of the Constitution. He moved the Court to invoke Section 11 - of the Judicature Act to sentence the Appellant afresh.

## Determination of Court

14] We have carefully studied the record, considered the submissions for both counsels, and the law and authorities cited and those sourced by the Court. We are a-live to the duty of this Court as a first appellate court to review the evidence on record and reconsider the material before the trial Judge, including the decision of the trial Court, before arriving to our own decision. Rule 3O(1) (a) of the Judicature (Court of Appeal Rules) Directions, refer. We also do agree and follow the decision of the Supreme Court in Kifamunte Henry vs Uganda, (supra), where it was held that on a lirst appeal, this court has a duty to: 20 15

"...reuieut the euidence of the case and to reconsider the mateials before the trial judge. The Appellate Court must then make up its own mind not disregarding the judgment appealed from, but carefully ueighing and consideing it."

⁵ 15] Both Counsel did appreciate that sentencing is a matter of discretion of the sentencing Judge. We would add that each case presents its own facts upon which a Judge exercises that discretion. See Karisa Moses vs Uganda, SC Criminal Appeal No. 23 of 2OL6. The principles guiding the appellate court when considering any contest to a sentence are well settled. As pointed out for the Respondent, our powers to intervene and set aside a sentence, are quite limited. We may interfere only in cases where it is shown that: 10

a. The sentence is illegal.

- b. The sentence is manifestlg harsh or excessiue or too low as to amount to an injustice. - c. There has been failure to exercise discretion. - d. There tuas failure to take into account a material factor. - e. An error in pinciple was made.

See Ogalo S/O Outoura as R (7954) 21 E. A. C. A. 27O, Kgallmpa Eduard as Uganda, SC Crlmlnal Appeal No. 70 of 1995; Kamga Johnson Waaamuno as Uganda, SC Crlmlnal Appeal No. 76 of 2OOO arld Kiuto.lq.bge os Ugand.a, SC CrlmlnalAppeal No. 743 of2OO7.

## Ground Three

16] In this ground, the legality of the sentence is put in issue, and we shall therefore deal with it first. Should this ground be

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resolved in favour of the Appellant, then the appeal would have $\mathsf{S}$ been fully determined.

The Appellant's counsel submitted that the trial Judge omitted to deduct the period his client had spent on remand which is in contravention of Article 23 (8) of the Constitution and contrary to the decision of Rwabugande Moses vs Uganda, **(supra).** Respondent's counsel conceded to that submission and proposed we intervene to correct that illegality. We have perused the sentencing Order and confirmed that the Judge omitted to deduct or at least to take into account the period that the Appellant had spent on remand before his conviction.

- We therefore hold that the sentence of 30 years' imprisonment $17]$ imposed on the Appellant on 20^th May 2015 was illegal. Exercising our powers under section 11 of Judicature Act, we set it aside and proceed to impose what we consider an appropriate sentence in the circumstances. - $18$ We shall first consider the consistency principle expounded in many authorities and the Sentencing Guidelines. Considering previously decided cases is with good reason. It was held by the Supreme Court in Aharikundira Yustina vs Uganda, SC **Criminal Appeal No. 27 of 2015** that:

"... it is the court while dealing with appeals regarding sentencing to ensure consistency with cases that have similar facts. Consistency is a vital principle of a sentencing regime. It is deeply rooted in the rule of law

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⁵ and requires that laws be applied uith equality and without unju stifi.able differentiation. "

> It was also held by this Court in Ainobushobozi Venancio vs Uganda CA Criminal Appeal No.24212014 that:-

"Although past decisions with regard to sentences do not haue the authoitg of precedents, theg do prouide a range which ought to be considered for purposes o.,f achieuing some measure of uniformitg between like cases."

- 191 In Mwerinde Lauben vs Uganda, CA Criminal Appeal No. 151 of 2O13, this Court substituted a sentence of 35 years' imprisonment with that of 30 years' imprisonment after considering that the Appellant had pleaded guilty. Yet in Oyita Sam vs Uganda, CA Criminal Appeal No. 3O7 of 2O1O, the Appellant pleaded guilty to having murdered his brother and was sentenced to death by the trial Judge. On appeal, this Court substituted the death sentence with a sentence of 25 years' imprisonment. - 2Ol In Kia Erin vs Uganda, CA Criminal Appeal No.7O of 2OL7, the Appellant was convicted of the offence of murder and sentenced to imprisonment for life. On appeal, the sentence was substituted with a sentence of 18 years'imprisonment. Further, in Tumwesigye Anthony vs Uganda, CA Criminal Appeal No. 61 of 2OL4, the Appeilant was convicted of murder and this Court set aside a sentence of 32 years' imprisonment, and substituted it with a sentence of 20 years on appeal. In Kiiza

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- ⁵ Alex vs Uganda, CA Criminal Appeal No. 177 of 2O13, this Court set aside a sentence of 60 years' imprisonment for murder and instead imposed one of 25 years' imprisonment - 10 2ll We take note the facts of this case, as well as all the aggravating and mitigating factors that counsel presented in the allocution proceedings. We in addition take into consideration that the Appellant was at 25 years, a relatively young man at the time he offended. By pleading guilty he did not waste Court's time, and saved State resources. Taking all that into account, we invoke our discretional powers under Section 11 of the Judicature Act, to impose a sentence of 22 years' imprisonment. We proceed to deduct the period of nine months that the Appellant had spent on remand prior to his conviction. Thus, the Appellant shall serve 21 years and one-month imprisonment from the time of conviction. 15 - ²⁰ 221 Accordingly, this appeal succeeds.

| Dated at Mbarara this 4th dav | f September 2024. | |-------------------------------------------|-------------------| | . EvaK<br>wata<br>Ho<br>Justic<br>f Appeal | |

. V 5 Hon. Kihika Justice 10 1 Hon. Dr. Mugenyi Justice ofAppeal