[2024] UGCA 138

# THE REPUBLIC OF UGANDA IN THE COURT OF APPEAL OF UGANDA AT KABALE

(Coram: Muzamiu lrlutangula Kibeedi, Christopher Gashirabake & Oscar John Khika, JJA)

# CRIMINAL APPEAL NO. 0342 OF 2016

MUJURIZIGERALD APPELLANT

#### VERSUS

# UGANDA RESPONDENT

[An appeal against the conviction and sentence arising from the decision of the High Courl of Uganda at Kabale (Hon. Justice Kazibwe ltloses Kawumi) delivered on the 1't day of September 2016 in CriminalSesslon Case No. 0063 of 20151

### JUDGMENT OF THE COURT

#### lntroduction

- t1l The Appellant was indicted on two counts of murder contrary to sections 188 and 189 of the Penal Code Act, Cap. 120 and Aggravated robbery contrary to Sections 285 and 286(2) of the Penal Code Act and sentenced to 20 years' imprisonment on each count pursuant to a Plea Bargain Agreement (PBA). All the sentences were to run concunently. - l2l The facts as admitted by the Appellant are that the Appellant, then a resident of Mushangati cell, Kihegamo parish Nyamweru sub-county in Kabale District, and others still at large, on the 01st of June 2014 al Omukateretere Village, Nyamweru sub-county in the Kabale District, unlaMully and intentionally killed Emmanuel Silvesta Fumbira (hereinafter called "the deceased"), robbed him of his money worth UGX. 45,000/=, and immediately before or after the robbery used a panga on the deceased.

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- 11l Pursuant to the PBA, the Appellant was convicted upon his own plea of guilty and sentenced to 20 years' imprisonment on each Count of murder and aggravated robbery. Both sentences were to run concurrently. - 121 The PBA was signed by the Appellant, his Counsel, the Prosecutor, the interpreter and thereafter, it was endorsed by the trial Judge.

### The appeal

- t31 The Appellant thereafter got dissatisfied with the circumstances under which the sentence was passed and its severity, and with leave of court, appealed to this court against sentence only on the following grounds: - The learned tial Judge erred in law and in fact when he confirmed the sentence of 20 years' imprisonment without ftst asceftaining whether the Appellant had understood the bargain process and this occasioned a miscarriage of justice. 1 - The learned trial Judge erred in law and fact when he confirmed the sentence of 20 years' imprisonment on each count without taking into account the period the Appellant had spenl on remand and this occasioned a miscarriage of justice. 2 - The learned Trial Judge erred in law and fact when he confirmed the sentence of 20 years' imprisonment which was harsh and manifestly excesslye and this occasioned a miscarriage of Justice. 3

# Representation

141 At the hearing of the appeal, Mr. Felix Bakanyebonera appeared for the Appellant on State Brief, while Ms. Fatinah Nakafero, Chief State Attorney (DPP) appeared for the Respondent. The Appellant was present in court.

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t51 The Appellant sought leave to validate the Notice of Appeal, leave to appeal against sentence only and the written submission which were already on the court record. All applications were g ranted,

# Appellant's Written Submissions

- t6l The Appellant argued ground '1 separately and grounds 2 and 3 concurrently. - l7l With regard to ground one, Counsel for the Appellant submitted that the learned trial Judge failed to observe and ascertain whether the PBA was properly arrived at and this occasioned a miscarriage of justice. That the learned trialjudge abdicated his duty when he did not or failed to ask the appellant whether he had knowingly and willingly agreed to the sentence of 20 years' imprisonment or whether he had understood the plea bargain process. - t81 On grounds 2 and 3, the Appellant's Counsel contended that the learned trial Judge did not deduct the time the appellant spent on remand since the sentence should have indicated the figure of years and some months and not the net figure of plain 20 years. That this was contrary to the guidelines as set out in the case of Kabuso Issa Vs. Uganda. SC Criminal Appeal No. 07 of 2002. - tgl Counsel for the Appellant went ahead and cited a number of decided cases to show that the ²⁰ years' imprisonment on each Count was harsh and manifestly excessive, in light of the fact that this was arising out ofa PBA. Counsel prayed that the appeal be allowed, and the sentence of 20 years' imprisonment be set aside.

# Respondent's Replv

- t10l Counsel for the Respondent opposed the appeal and supported the conviction and sentence. - t11l Counsel submitted that the whole appeal emanated from the plea bargain proceedings governed by the Judicature (Plea Bargain) Rules 2016. That Rule 12 (1) (g) provides for waiver

. Page 3 of 12 t\r6

of the right to appeal except as to legality or severity of sentence or if the judge sentences the accused outside the agreement. Counsel argued that that the Appellant, prosecutor and the learned trial Judge were all bound by the PBA which upon confirmation by court, became part of the court record.

- l12l With regard to the complaint on failure to take into account the period spent on remand by the trialJudge, Counselfor the Respondent argued that the sentence was passed on 01/09/2016 and this was in the pre-Rwabugande era where mathematical deductions was not mandatory in Ugandan jurisprudence. - t13l As to the appellant's argument that the trial Judge did not asce(ain whether the appellant, understood the bargain process, Counsel for the Respondent argued that the learned trial Judge fulfilled his obligation to ensure that the Appellant understood the plea bargain process and once the agreement was endorsed by all the parties, it became binding on all of them unless there were illegalities. - t14l Counsel further argued that the sentence of 20 years' imprisonment meted out to the Appellant was not harsh and court rightly directed itself on the law and applied it to the facts,

#### Dutv of the Court

[15] This is an appeal against sentence imposed by the trial Court pursuant to a PBA. The scope of investigation of this court, as an appellate court, in appeals arising from PBA is limited by Rule 12 (1)(9) of the Judicature (Plea Bargain) Rules, S.l. 43/2016 to legality or severity of sentence or if the Judge sentences an accused person outside the PBA. We shall bear in mind the above principles when resolving this appeal while, at the same time, not losing sight of the general duty of this court, as first appellate court, to re-appraise all evidence that was adduced before the trial court and come to its own conclusions of fact and law while making allowance for the fact that the court neither saw nor heard the witnesses testify. (See: Rule 30 (1)(a) of the Judicature (Court of Appeal Rules) Directions, S.l No. 13-10; Fredrick Zaabwe vs. Orient

Poge 4 of 72 LdpA \{

Bank Ltd, Supreme Court Civil Appeal No. 4 of 2006; and Kifamunte Henry vs. Uganda, Supreme CourtCriminal Appeal No.10 of 1997.

- t16l Ground 1 Failure to ascertain whether the Appellant understood the plea barqain process - 117) The Appellant's complaint in ground one of the appeal is that the learned trial Judge did not verify whether the Appellant's understood the PBA or not, since the proceedings did not show that a clerk or interpreter was present when the Appellant was being asked whether he understood the items of the PBA and the language used, and that this occasioned ^a miscarriage of Justice. - t18l TheRespondent's Counseldisagreed - l19l Rule 12 of the Judicature (Plea Bargain) Rules, together with the second schedule to the said Rules, set out a comprehensive procedure for recording the PBA by the Court. Among other things, the court is required to find out from the accused whether he voluntarily signed the PBA after it had been explained to him or her and translated to him or her in a language he or she understands. - l20l The record of proceedings indicates what the trial Court did thus:

# ,PROCEED"VGS

#### BEFORE HON, JUST'CE MOSES KAZIBWE KAWUMI

1/9/2016

Accused in court.

Gloria M for state

Mr. Muhangi forthe accused.

Gloia M: We have had a bargaining sesslon wrth the accused, counsel and without the family of the deceased who and [sic!] not make it for the negotiations

Poqe 5 of 72

Court: Charge of murder read to the accused. Accused pleads guilty. Plea of guifty entered.

Charge of aggravated robbery read to the accused

Accused: I plead guilty. Plea of Guilty entered.

Bief facts: read to the accused.

Accused: the facts as read are true.

Court: I sentence you. I have considered time you have spent on remand and lsenlence you to 20 years on each of the counts of murder and aggravated robbery. Bolh sentences are to run concunently.

Slgned:

#### Moses Kazibwe Kawumi

Judge

### 01/09/2016."

- 121) On the face of it, the Court proceedings for the day do not indicate whether the PBA was translated for the Appellant or not, and whether indeed the court verified that the Appellant understood the PBA before signing. However, reading the said court proceedings in isolation of the PBA, and vice versa, denies the court a full picture of what exactly transpired before the trial court. Like in all appeals, this court, as an appellate court, is duty bound to evaluate all the evidence before it before pronouncing itself on the propriety of any complaint under consideration. - 122) We have reviewed the PBA. Page 7 of the PBA contains the interprete/s statement, names and signature in the following terms:

## "INTERPRETER'S/7RII^JSLAIOR'S SIAIE14E /T (lF APPLICABLE)

l, having been duly sworn or having a written oath on flle, certify that I truly interpreted/translated this form to the accused in ...... language (specify) and the accused stated that he or she understood the contents of the form, and then initialed and signed the form SAFAR/ VICENT

Poqe 6 of 12 L\oo \rfl \J, Name and signature of couft lnterpreter/translator

Date: 01.09.2016"

t23l Thereafter, the Court's findings and order were recorded on page 8 of the PBA in the following terms:

> "The court, having reviewed this form and any addenda, and having questioned the accused concerning accused's constitutional rights, finds that that accused has express/y, knowingly, understandingly, and intelligently waived and given up his or her constitutional and statutory ights. The Coutl finds that the accused's p/ea (s) and admission (s) are freely and voluntarily made with an understanding of the nature and consequences thereof, that any allegations as indicated in this form are true, and that there is a factual basis for the plea (s) and admission (s). The Court accepts the accused's plea (s). The Court orders that this form be filed and incorporated in the cocked by reference as though fully set forth therein.

Signature of the Judge

Dated at Kabale this 1st day of September 2016"

- l24l Upon review of the court record as a whole, we are satisfied that the failure of the court to record the language in which the translation was made did not occasion injustice in the circumstances of this case. The fact that the Appellant was represented by an advocate at the stage of negotiating the PBA and at its presentation to court further reinforces our finding. - t25l We reiterate the observations of the Supreme Couft in Uganda Vs Guster Nsubuga and Another, Supreme Court Criminal Appeal No. 92 of 2018 to the effect that "...it would be expecting too much to demand that all trials must run like clock-work, short of which they would result in nullification of the entire trial. We do not live in a pelect world so we have to evaluate the impact of any pafticular impefection on the entire trial." - t26l Accordingly, the Appellant's complaint in ground one fails.

## Grcund 2. Leqality of Sentence

1271 ln ground two of the appeal, the Appellant faulted the trial Judge for failing to deduct the time spent on remand by the Appellant which thereby occasioned a miscarriage of justice. Counsel

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cited the case of Rwabugande Moses Vs Uganda, Supreme Court Criminal Appeal No. 25 of 2014 where the Supreme Court held lhat "taking into account" involves an arithmetic deduction of the remand period.

- t28l The Respondent disagreed and contended that the Rwabugande case was not applicable in so far as the contested sentence was passed before the decision in the Rwabugande case. - l2gl Deduction of the remand period from the sentence is a constitutional requirement emanating from Article 23 (8) of the Constitution of the Republic of Uganda, 1995 which is couched as follows:

"Where a person ls convicted and sentenced to a term of impisonment 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."

t30l The sentencing order of the trial court is couched as follows:

'Court: I sentence you. I have considered time you have spent on remand and I sentence you to 20 years on each of the counts of murder and aggravated robbery. Both senlences are to run concurrently. Srgned Moses Kazibwe Kawumi Judge 01/09/2016."

131l From the above, it is clear that the conviction and sentencing of the Appellant took place on '1st September 2016. This was before the Supreme Court made its decision in March 2017 in the case of Rwabugande Moses Vs Uganda, Supreme Court Criminal Appeal No. 25 of 2014 whereby the clause 'taking into account' as set out in Article 23(8) of the Constitution was held to require an arithmetic deduction of the remand period from the final sentence. The Rwabugande case is thus inapplicable to the instant sentence which was made before it since it does not have retrospective application. (See: Byamukama Herbeft Vs Uganda SCCr.

\ Poge I of 72 ^M'' Lro's

Appeal No.21 ot,2017, and Nashimolo Paul Kibolo Vs Uganda SC Cr. Appeal No.46 of 2Un

t32l We are satisfied that the expression in the sentencing order that 'l have considered time you have spent on remand and I sentence you to 20 years on each of the counts of murder and aggravated robbery", clearly indicates that the trial Judge was alive to his duty to consider the constitutional command regarding the remand period while sentencing the Appellant. This complied with what was accepted as the meaning of Article 23(8) of the Constitution at that moment in time as enunciated by the Supreme Court in several decisions rendered before the Rwabugande case which include Kr2ilo Senkula Vs. Uganda, Supreme Court Criminal Appeal No.24 of 2001\_(unreported), where the Supreme Court stated as follows:

> "As we understand the provisions of Article 23 (8) of the Constitution, they mean that when a trial CourI imposes a term of imprisonment as senlence on the convicted person the Cout should take into account the period which the person spent in remand prior to hisher conviction. Taking into account does not mean an aithmetical exercise."

t33l Accordingly, ground two fails

## Ground 3 - Severitv ofthe sentence

- t34l The Appellant's complaint in ground three is that the sentence of 20 years' imprisonment was excessive and in breach of the principle of consistency in sentencing. - t35l The Respondent disagreed. - t36l The sentence of 20 years imprisonment term was imposed by the trial Court pursuant to the PBA freely negotiated and entered into by the parties after considering both the aggravating and mitigating factors as set out in the PBA. The sentencing mandate of the trial Court in convictions arising from PBA is limited by the law to sentencing the convict as agreed in the PBA or rejecting it completely where the trial court is satisfied that it is illegal or may occasion a miscaniage of justice. (See: Rules 12(1Xg) and 13 of the Judicature (Plea Bargain) Rules 2016.

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The trial court does not have power to sentence an accused person outside the PBA and if it does so, that becomes sufficient ground for the appellate court to set aside the sentence. (See: Rule 12(1)(g) of the Judicature (Plea Bargain) Rules 2016).

t37l This court when dealing with complaints on appeal based on the severity of a sentence made by the trial court pursuant to a PBA freely entered by the parties held in the case of Lwere Bosco Vs Uganda, Court of Appeal Criminal Appeal No. 531 of 2016 (Egonda-Ntende, Cheborion Barishaki & Muzamiu M. Kbeedi, JJA) as follows:

> "Seveity of the sentence as a ground of appeal cannot arise out of plea bargain proceedings because parlies negotiate and agree voluntarily. A convict cannot later change his mind on appeal faufting the trial judge whose discretion in the plea bargain proceedrngs is limited to confirming a sentence voluntaily initiated and agreed to by the pafties to the agreement. The Appellant cannot turn round and argue thatthe sentence so approved was harsh and excessive for non-consideration of mitigating factors because lhese faclors are paft of the negotiation. The accused person or his counse/ must labor to inform court about the ongoing plea bargain negotiations and also consuft courl on its recommendations especially on the posslb/e senlence before the agreement is brought to court for approval and recording.

> This would be the appropriate stage in the proceedrngs for court to recommend to the parties to consider the mrtigating factors and the period an accused person would have spent on remand.

> Allowing convicts to appeal against sentences they freely and voluntarily agreed in the first place without good reason would in our view undermine the relevancy and objectives of plea bargaining in our criminal lusllce sysfem. "

t38l The above position is still a good statement of the law, and we find no reason to depart from it

t39l The rationale for the court to hold the parties onto the sentences mutually agreed upon by the parties and set out in the PBA was emphasized by this court in the case of Arinaitwe Gerald Vs Uganda, Criminal Appeal No. 191 of 2016 (Muzamtu M. Kbeedi, Christopher

Gashiabake & Eva K. Luswata, JJA) in the following terms:

\,'f Pose 70 ot 72 "L\rat

"lf the plea bargain process is to meaningful play its citical role in our criminal justice system, lf is impoftant for the courls of law to hold the palies onto the terms freely negotiated and reduced into the plea bargain agreemenl unless, of course, there is clear evidence of resultant miscaniage of justice or an illegality."

- t40l ln any case, we are satisfied that the sentence of 20 years' imprisonment term was not out of range with the decided cases of this court in similar matters. ln Bakubuye Muzamiru & Anor Vs Uganda, Supreme Couft Criminal Appeal No. 56 of 2015 the Appellants were convicted of murder and aggravated robbery and sentenced to 40 years' imprisonment on the count of Murder. This court found the sentence neither harsh nor excessive. On a further appeal to the Supreme Court, the sentence was confirmed. - t41l ln Sekawoya Blasio ys Uganda, Supreme Courl Criminal Appeal No. 24 of 2014, lhe Appellant was convicted on 3 counts of Murder of his biological children and sentenced to life imprisonment on each. This Court dismissed his appeal against conviction and sentence. The Supreme Court confirmed the decision that the Appellant was sentenced to spend the rest of his natural life in prison. ln Kisitu Majaidin alias Mpata Vs Uganda, Court of Appeal Criminal Appeal No. 028 of 2007, this Cou( upheld a sentence of 30 years' imprisonment for murder. The Appellant had killed his mother. - 142) ln Kyaterekera George William V Uganda, Courl of Appeal Criminal Appeal No.773 of 2010, this Court confirmed the sentence of 30 years imposed by the trial Court on the appellant who had fatally stabbed his victim on the chest. - t43l ln view of the aforesaid, we do not accept the Appellant's claim that the sentence was harsh and excessive in the circumstances of the case. Ground three accordingly fails.

## Disposition

l44l The appeal is dismissed.

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The Appellant shall continue serving the sentences imposed by the High Court, which are $[45]$ hereby confirmed.

## We so Order.

$\bullet$

$\overbrace{\cdots}^{\bullet}$ 2024. Delivered and dated this ...... $\dots$ day of $\dots$ cilee &

**MUZAMIRU MUTANGULA KIBEEDI Justice of Appeal**

**CHRISTOPHER GASHIRABAKE Justice of Appeal**

OSCAR J. KIHIKA Justice of Appeal