[2025] UGCA 153

# THE REPUBLIC OF UGANDA IN THE COURT OF APPEAL OF UGANDA AT MBARARA CRIMINAL APPEAL NO. 117 OF 2016

- 1 MUNYANEZA FAUSTINO - 2. NDABAKULANYE CYRIAN ALIAS KADOGO - 3. MUGARURA EMMANUEL ::::::::::::::::::::::::::::::::::::

#### **VERSUS**

**RESPONDENT** UGANDA ::::::::::::::::::::::::::: (Appeal from the decision of the High Court of Uganda at Mbarara before David Matovu, J dated 26^th April, 2016 in High Court Criminal Session Case No. 355 of 2014)

Coram: Moses Kazibwe Kawumi, Florence Nakachwa, Cornelia Sabiiti Kakooza, JJA

## JUDGMENT OF THE COURT

#### **Background**

The Appellants were indicted for aggravated robbery c/s 285 and 286 1. (2) of the Penal Code Act, Cap. 120. It was alleged that the Appellants during the night of 17^th June, 2014, at Misyera village in Isingiro District robbed Mwebesa Paul of one (1) goat, three (3) chicken and mattress all valued at UGX. 300,000/= (Three hundred thousand shillings) and at the time or immediately before or immediately after the said robbery used deadly weapons, to wit pangas on the said Mwebesa Paul. They were tried, convicted and sentenced to 30 years of imprisonment.

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#### **The Appeal**

The Appellants appealed against the sentence only on sole ground $2.$ that:

The learned trial Judge erred in law and fact when he sentenced the Appellants to a sentence of 28 years and 63 days' imprisonment that was harsh and excessive in the circumstance.

At the hearing of the appeal, Ms. Namusisi Princess Benita appeared $3.$ for the Appellant on state brief while the Respondent was represented by Baguma Batson, from the Office of Director of Public Prosecutions. Both parties filed their respective written submissions which were adopted and considered by this Court in the determination of the appeal.

Counsel Benita Namusisi informed court that the 1^st Appellant died as per a letter dated 20^th May 2025 from Uganda Prisons Murchison Bay Luzira. However, court ruled that given the failure by prisons to produce a death certificate for the 1^st Appellant, the appeal against him was dismissed under rule 73 (6) of the Judicature (Court of Appeal Rules) Directions, S. I. 13-10. The prison authorities were however tasked to ensure that the death certificate is put on the court record within 30 days from 20^th May, 2025. The appeal proceeded in respect of the $2^nd$ and $3^rd$ Appellants. The Court of Appeal was informed by the appellant's counsel that Kantarama Alphonsena $(A4)$ was acquitted at trial so she did not appeal.

#### Duty of the first appellate court

It is trite that the duty of a first appellate court is to reconsider all $\overline{4}$ material evidence that was before the trial court, while making allowance for

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the fact that it has neither seen nor heard the witnesses, to come to its own conclusion on whatever issue the appeal touches. We shall be mindful of this duty in our resolution of this appeal.

### **Ground of the Appeal**

That the learned trial Judge erred in law and fact when he sentenced the Appellants to a sentence of 28 years and 63 days' imprisonment that was harsh and excessive in the circumstance.

### **The Appellant's submissions**

5. The Appellants' counsel submitted that the learned trial Judge when sentencing the Appellants said; "I would have sentenced each of the convicts to thirty years (30) imprisonment but after deducting the one (1) year and 302 days they have been on remand I hereby sentence to imprisonment as follows:...". That the words "I would have sentenced..." used by the trial Judge in his judgment while sentencing the Appellants were ambiguous. That the interpretation given to this statement is that the Judge did not sentence the Appellants to 30 years but instead he imposed a sentence of 28 years and 63 days' imprisonment.

Counsel contended that the period spent on remand should have been 6. deducted from the 28 years and 63 days. That the record of proceeding does not show that the Appellants were sentenced to 30 years imprisonment. That the trial Judge rightly took into account the Appellants' remand period but never deducted it from the awarded sentence of 28 years and 63 days.

The Appellants' counsel further submitted that the learned trial Judge $7.$ did not consider the Appellants' mitigating factors. That it was not in dispute that the Appellants were first time offenders, they asked for lenience, the 2^nd Appellant was a young man at the age of 24 years and the 3^rd Appellant pleaded that he was sick.

That all the mitigating factors were raised by the Appellants but the trial 8. Judge focused on the aggravating factors hence imposing a harsh sentence on the Appellants. (Counsel cited the case of Aharikundira Yustine v. Uganda, SCCA No. 27/2015). That in the current case, the Appellants were each sentenced of 28 years 63 days' imprisonment which is harsh and excessive in the circumstance. It is prayed for the Appellants that the appeal is allowed, a lesser sentence is given and the remand period be deducted from the same.

### **The Respondents' submissions**

$9.$ The Respondents submitted that the learned trial Judge did consider all the circumstances of the case and took into account the mitigating and aggravating factors before arriving at the sentence. That it is very clear from the record that the trial Judge deemed the sentence of 30 years appropriate and after deducting the period spent on remand he sentenced each of the Appellants to 28 years and 63 days. That there is nothing vague about the sentence.

Counsel invited this court to note that this case was decided on 27^th $10.$ April, 2016, prior to the case of Rwabuganda Moses v. Uganda, SCCA No. 25 of 2014, which was decided on in $3^rd$ March, 2017, which made it

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mandatory for the trial court to arithmetically deduct the period spent on remand. That even if the trial Judge had not arithmetically deducted the remand period, it would not be an illegality.

$11.$ That the learned trial Judge was alive to the principles of consistence and uniformity. That there are a number of authorities which support sentences of 30 years and above for aggravated robbery. That the learned trial Judge properly exercised his discretion after considering all the circumstances of the case and arrived at 30 years as the appropriate sentence from which he deducted the period spent on remand.

$12.$ The Respondent's counsel submitted that at he was alive to the fact that the offence of aggravated robbery carries a maximum sentence of death but he discounted all the various options such as death, life imprisonment as well as 35 years which is the starting point under the sentencing guidelines. That there is no reason to fault the trial Judge. Counsel prayed that this appeal should be dismissed and the sentence be upheld.

#### **Court's analysis**

It is trite law that this court will only interfere with a sentence $13.$ imposed by a trial court in a situation where the sentence is either illegal, or founded upon a wrong principle of the law or where the trial court has not considered a material factor in the case; or where the trial court has imposed a sentence which is harsh and manifestly excessive in the circumstance. It should be noted that the primary responsibility for sentencing is on the trial court which has the discretion to pass a sentence which it considers to be appropriate

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depending on the circumstances of each and every case.

In the case of Kyalimpa Edward v. Uganda - S. C. Crim. Appeal $14$ No. 10 of 1995, the Supreme Court of Uganda clarified on the principles governing interference by the appellate court on sentencing, as follows:

"An appropriate sentence is a matter for the discretion of the sentencing judge. Each case presents its own facts upon which a judge exercises his discretion. It is the practice that as an appellate Court, this Court will not normally interfere with the discretion of the sentencing judge unless the sentence is illegal, or unless court is satisfied that the sentence imposed by the trial judge was manifestly so excessive as to amount to an injustice: Ogalo s/o Owoura vs R. (1954) 21 E. A. C. A. 270, R. vs Mohamedali Jamal (1948) 15 E. A. C. A. 126."

Although offences of the same nature are not committed under $15.$ the same circumstances, the sentencing courts should always maintain consistency or uniformity in sentencing. In the case of Mbunya Godfrey v. Uganda, Supreme Court Criminal Appeal No. 4 of 2011, the Supreme Court emphasized on this position as thus:

"We are alive to the fact that no two crimes are identical. However, we should try as much as possible to have consistency in sentencing."

Section 131 (1) (c) (ii) of the Trial on Indictment Act, Cap. 25 $16$ empowers this court in the case of an appeal against sentence alone, to confirm or vary the sentence. Before passing a sentence on the Appellant in the instant case, the learned trial Judge stated as follows:

# "Sentence

Since the prosecution does not have the past record of the convicts this court will presume that they are first offenders. The offence they committed is a rather serious one as they left their homes and raided homes of places coming people, they disrupted their sleep, assaulted the complainant using a panga and even deprived him of his property.

I would have sentenced each of the convicts to thirty years (30) imprisonment but after deducting the one (1) year and 302 days they have been on remand I hereby sentence them to imprisonment as follows:

A1 twenty eight (28) years sixty three (63) days A2 twenty eight (28) years sixty three (63) days A3 twenty eight (28) years sixty three (63) days They have a right of appeal against conviction and sentence"

In the above extract, we find vagueness in the following 17. phrase: "I would have sentenced each of the convicts to thirty years (30) imprisonment but after deducting the one (1) year

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and 302 days they have been on remand I hereby sentence them to imprisonment as follows....".

The trial judge should have given a definite sentence of 18. imprisonment for 30 years then deduct the period spent on remand of one year and 302 days before conviction. However, the trial Judge rightly exercised his discretion in passing the sentence by taking into account both the mitigating and aggravating factors, bearing in mind that the maximum sentence for the offence of aggravating robbery was a death sentence. Therefore, there was no miscarriage of justice in line with section 138 (1) of the Trial on Indictments Act, Cap 25.

#### Section 138 (1) provides thus: 19.

"Subject to the provisions of any written law, no finding, sentence or order passed by the High Court shall be reversed or altered on appeal on account of any error, omission, irregularity or misdirection in the summons, warrant, indictment, order, judgment or other proceedings before or during the trial unless the error, omission, irregularity or misdirection has, in fact, occasioned a failure of justice."

Further, it is clear from the extract above that the trial 20.

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Judge was aware of the provisions of Article 23 (8) of the Constitution of the Republic of Uganda, 1995. He even went ahead to subtract the period the Appellant spent on remand which was 1 year and 302 days from the 30 years' imprisonment concluding their final sentence to be 28 years and 63 days' imprisonment for each Appellant. We find that the sentence was appropriate considering the maximum sentence and the sentencing range for the offence of aggravated robbery.

$21.$ In light of the foregoing analysis, this appeal is devoid of merits and it is hereby dismissed. We so order.

Signed, delivered and dated at **Mbarara** this ....................................


**JUSTICE OF APPEAL.**

**Florence Nakachwa** JUSTICE OF APPEAL.

ckSdur

Cornelia Sabiiti Kakooza JUSTICE OF APPEAL.