[2024] UGCA 112

### ⁵ THE REPUBLIC OF UGANDA

## IN COURT OF APPEAL UGANDA HOLDEN AT ARUA

(Coram: Kiryabwire, Mulgagonja, Luswata, JJA)

# CRIMINAL APPEAL No. O325 of2OL9

### BETWEEN

10 ULEIGA STEPHEN MUZUNGU:::::::::::::::::::::::::::::::!:::::: APPELLANT

### \rERSUS

UGANDA::::::::: RESPONDENT

(Appeal from the Judgment of Oyuko Anthony OJok, J, sitting at AJumani High Court in Criminal Session Case No. O85 of 2OL8,

delivered on the 25th day ofJune, 20l9l

### JUDGMENT OF THE COURT

# Introduction

1l This appeal arose from the judgment of the High Court in which the appellant Ulega Stephen Muzungu was on 4th December,20lS convicted for the offence of murder contrary to Sections 188 and 189 of the Penal Code Act Cap. 120. It was stated in the indictment that the appellant and two others on 24/2/2018, atKozeza East Village, in Ajumani District, with malice aforethought, unlawfully killed Vukoni Patrick.

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- ⁵ 2l The facts admitted at the trial are that on 24/02120 18, the deceased Vukoni Patrick, the appellant and many others attended a disco dance hosted in the appellant's home. Sometime between midnight and 1.0Opm, one called Mamba approached the deceased and other people who were dancing in a circle and attacked them by boxing the deceased. The appellant who had been drinking, heard the fracas and approached the scene. He kicked the deceased down and jumped onto the deceased's stomach and the latter lost consciousness. PW3 Dralukpe Innocent administered first aid to the deceased and then took him to hospital where he died the next morning. The matter was reported to the police and the appellant and two others were arrested from the neighbouring village the next day. The appellant was subsequently indicted, tried and on 4th December 20 ¹⁸ sentenced, to 23 years and nine months' imprisonment. 15 10 - 3l Being dissatisfied with the decision of the trial Judge, the appellant lodged an appeal against the sentence that: 20

The learned Judge etred ln low and fact utlen he sentenced the appellant to 23 gedrs and nlne months' lmprlsonment uthlch sentence is hcrsh and excesslae ln the clrcum,stances of the case.

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## Representation

4] When this appeal was called for hearing, Mr. Jurugo Isac Kodili who held the brief of Aciga Richard, represented the appellant on State brief. On the other hand, Ms. Namuli Rachael a Senior State Attorney and holding brief of Ms. Ainebyona Happiness, a Chief State Attorney, appeared for the respondent. We allowed the

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prayer by Mr. Kodili to validate the notice of appeal that was previously filed late. We also allowed his prayer for leave to proceed in this appeal against sentence only. t egal arguments of both counsel were by written submissions, which we have keenly considered together with a host of authorities, when deciding the appeal. 10 5

# Submissions for the Appellant.

- 5] As an introduction to his submissions, Mr. Aciga drew our attention to the instances when this Court, as a first appellate court may interfere with a sentence handed down at trial. Citing the decision of Ssekandi Muhammed versus Uganda, CA Crimlnal Appeal No. 364 of 2OL6, he argued that since the sentence imposed was harsh and excessive, this Court had powers to interfere with it. Specihcally, that since the appellant's counsel submitted mitigating factors including the fact that his client was a first time offender of youthful age and a family man, the sentence given was excessive. That the sentence meant that the appellant's children were deprived of parental care and guidance, and barely gave the appellant a chance to reform since he would have spent much of his productive and useful years in prison. - 6] Counsel in addition complained that the trial Judge failed to follow the principle of parity and consistency. To illustrate that submission, counsel offered several previous sentences of murder cases. For example, in Wabwire Idd versus Uganda, CA Criminal Appeal No. 7O8 of 2O15, this Court reduced a sentence of life imprisonment to 18 years, and that of Ssekandi Mohammed )( 30

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- ⁵ versus Uganda (supra) where this court reduced a sentence of 5O years to 15 years 7 months and 24 days' imprisonment. Therefore, that, had the trial Judge considered cases with similar facts, the Judge would not have imposed such a harsh and excessive sentence. - 7l Mr. Aciga continued that since the trial Judge observed that the present case did not fall in the category of the urarest of rare" cases, and since the murder arose from a fight was not pre meditated, he ought to have imposed a lenient sentence that was prayed for by defence counsel at the trial. Counsel concluded with a prayer that the sentence be set aside and replaced with a more lenient sentence. He suggested a term of 15 years' imprisonment. 10 15

# Submissions for the Respondent

- 8l In response, Ms. Happiness Ainebyona first drew our attention to the powers of this Court under Rule 30(1)(a) of the Rules of the Court which is to re appraise the evidence and all other material adduced at the trial and then draw our own inferences offact. To emphasize that position of law, counsel referred us to the decisions in Pandya versus R (19571 EA 336, Kifamunte Henry versus Uganda, SC Criminal Appeal No. 1O of L997 and other cases. - 9l Ms. Ainebyona then invited us to re-evaluate the evidence when bearing in mind the violence that the appellant and others employed when killing their victim. In her view, considering the aggravating and mitigating factors that were presented at the trial and which the Judge observed, the sentence given was

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- ⁵ appropriate in the circumstances. Ms. Ainebyona then cited the decision of Kyalimpa Edward versus Uganda, SC Criminal Appeal No. 1O of 1995, and then invited us to act only with caution because sentencing is a matter of discretion of the sentencing Judge. - 101 She too offered some previous decisions on murder in comparison. In particular, that of Semaganda Sperito & Anor versus Uganda, CA Criminal Appeal No. 456 of 2016, where this Court upheld a sentence of 50 years' imprisonment for murder. In addition, the decision of Akbar Godi versus Uganda, SC Criminal Appeal No. O3 of 2O13, where the Supreme Court confirmed a sentence of 25 years' imprisonment for the same offence, as well as Oylta Sam versus Uganda, CA Criminal Appeal No. 3O7 of 2O1O, where a death sentence was substituted with 25 years' imprisonment for an appellant who murdered his brother over a land dispute. To sum up her submissions on this point, counsel added the decision of this Court in Nalule Sarah versus Uganda, CA Criminal Appeal No. OO3 of 2013, where this Court followed dictum from the decision of Muhwezi Bayon versus Uganda, CA Criminal Appeal No. 198 of 2O13, in which this Court after reviewing a number of previous decisions, held that the emerging sentencing range for a single convict of murder, is in the range of 20 to 30 years' imprisonment but could in exceptional circumstances, be higher or lower. 10 15 20 25 - 11] In conclusion, Ms. Ainebyona emphasized her belief that the sentence of 23 years and 9 months' imprisonment for murder was

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lenient in view of sentencing ranges set by this Court and the Supreme Court. She prayed that the sole ground of appeal fails.

## **Analysis of Court**

12] We have carefully read the record, considered the submissions for both sides, and the law and authorities cited and those sourced by the Court. We are alive to the duty of this Court as the 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 30(1) (a) of** the Judicature (Court of Appeal Rules) Directions refers. We also do agree and follow the decision of the Supreme Court in Kifamunte Henry versus Uganda, SC Criminal Appeal No. 10 of 1997, where it was held that on a first appeal, this court has a duty to:

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"... review the evidence of the case and to reconsider the materials before the trial judge. The Appellate Court must then make up its own mind not disregarding the judgment appealed from, but carefully weighing and *considering it.*"

13] This appeal was preferred against sentence only. It was submitted for the appellant that the sentence of 23 years' and 9 months' imprisonment was harsh and excessive, because the trial Judge did not consider the mitigating factors presented for his benefit, and he also did not follow the principle of consistency and parity. Respondent's counsel discounted any merit in the appeal, and after comparing the sentence to previous decisions of this Court

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- ⁵ and the Supreme Court, she concluded that the sentence was in fact lenient. - ¹⁴¹Both 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 versus Uganda, SC Criminal Appeal No. 23 of 2016. 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: - a. The sentence is illegal. - b. The sentence is manifestly harsh or excessive. - c. There has been failure to exercise discretion. - d. There was failure to take into account a material factor. - e. An error in principle was made.

See Ogalo S/O Owoura veraus R (1954) 21 E. A. C. A. 27O, Kyalimpa Edward versus Uganda, SC Crimlnal Appeal No. 1O of 1995; Kamya Johnson Wavamuno versus Uganda, SC Criminal Appeal No. 16 of 2OOO and Kiwalabye versus Uganda, SC Criminal Appeal No. 143 of 2OO1.

- 15] In this case, the complaint by the appellant is that the sentence was manifestly harsh and excessive in the circumstances. The bar for interfering with a judgment for that reason is set rather high. - In a previous decision of this court of Ndyabalema Fulugensio

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## versus Uganda, CA Criminal Appeal No. 126 of 2016, It was held that:

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"There is a high threshold to be met for an appellate court to *intervene with the sentence handed down by a trial Judge on* grounds of it being manifestly excessive. Sentencing is not a *mechanical process but a matter of judicial discretion* therefore perfect uniformity is hardly possible. The key word is "manifestly excessive". An appellate court will only intervene where the sentence is manifestly excessive, in the circumstances. In circumstances where the learned trial Judge appeared to only consider aggravating factors, a sentence of 30 years may be considered manifestly excessive".

16] In order to confirm whether the trial Judge omitted to consider the mitigating factors or to consider previous decisions, we may need 20 to reproduce what was recorded in the allocution proceedings as well as the sentencing ruling. It was stated for the prosecution that the appellant who had shown no remorse during his trial, committed a rampart and grave offence that can attract the sentence of death. Further that the death of the victim, then in 25 Senior five, was a serious blow to his parents. The prosecution suggested a sentence of 25 years as appropriate in the circumstances. Conversely, it was stated in mitigation that the appellant then aged 19 years was of youthful age and a family man. The sentencing ruling was brief. The Judge stated at page 30 36 of the record that:

> "25 years appropriate less 1 year and 3 months spent on remand, leaving you to serve 23 years and 9 months.

*Right of appeal explained".*

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17] It is evident from the record that on a later date, the Judge $\mathsf{S}$ pronounced his detailed judgment and the sentencing order in line with section 83 and 85(1) & $(4)$ of the Trial on Indictments Act (TIA). In the latter, he explained the reasons for the sentence rendered, and we have reproduced it verbatim. He stated as follows: 10

> "I have considered the aggravating factors put before court by" prosecution and the mitigating factors enumerated by defence. It is true that murder is a serious offence that carries a maximum penalty of death but however, the maximum sentence is normally reserved for extreme cases, that you could refer to as the rarest of rare cases. It is also true that court reserves the discretion to give an appropriate and lawful sentence. In the instant case, a fight ensued between the convict's co-accused persons and the deceased and when the convict heard of the fight, he ran to the scene and joined in the fight. They then beat up the victim and as a result, the victim died the following day. I do not consider this the rarest of rare cases. I have considered the fact that the convict is a first-time offender although whether this is true, cannot be found out due to our poor record keeping but I take it as it is. I have also considered the period spent on remand under Article 23(8) of the Constitution and Regulation 15 (2) of the Constitution (Sentencing Guidelines) for Courts of Judicature, direction, *2013 that is 1 year & 3 months. I have also considered that* the convict has a wife and young children who need his care but he also needs to reform. Even if the convict had a fight with the deceased, being a relative, he ought to have taken him to the hospital but instead he ruthlessly ordered people to leave his compound and take the deceased away. There is no spear to life, one only lives once and yet the convict denied the deceased the right to live. His relatives will forever miss him, never to ever see him again. The nation was also deprived by

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⁵ a Aoung energetic man who would haue been uery useful to his family and the nation at large.

> I therefore find the sentence of 25 years appropiate, Iess ⁷ year and 3 months, Ieauing him to serue 23 years 9 months.

Right of Appeal explained (sic!)'.

- 181 Having considered the sentencing ruling, we do not agree with the submission that the trial Judge made no reference to what counsel presented as mitigation and aggravating factors before making a decision on the sentence. We note however that the Judge gave no serious consideration to the appellant's youthful age, who the facts show offended when only 19 years old, and thus the possibility that he could reform. The Sentencing Guidelines do provide in paragraph 21(1) that the advanced or youthful age of the offender mitigates the sentence of death. 10 15 - 191 In addition, the Judge omitted to apply the consistency principle, which when properly considered is a good guide on what would be an appropriate sentence. The omissions led to the Judge imposing a sentence that is harsh and excessive in the circumstances of this case. - 25 201 That being so, we are prepared to interfere with the sentence, and hereby set it aside. Having done so, we invoke the powers of this Court under Section 11 Judicature Act to impose a sentence that we deem appropriate in the circumstances. In making that decision, we shall consider the peculiar facts of this case as well as factors set in the law and developed out of long practice by this ³⁰ Court and the Supreme Court. I ¹⁰ u)^L

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- ⁵ 21] We agree with Ms. Ainebyona that the aggravating factors were serious and appeared to have outweighed what was stated in mitigation. The offence of murder cannot be taken lightly and may in certain circumstances attract the death sentence. The appellant acting in concert with others brutally ended the life of a young man, thus causing much trauma to his parents. Even so, it was not contested that the appellant offended when still a young man himself. One of the objectives of sentencing of offenders is the possibility of their rehabilitation and reintegration into society. The offender's age will normally have a direct bearing to that objective for it is hoped that the younger the offender, the more likely they will respond to rehabilitation and the more years they can positively serve society after discharge from prison. 10 15 - 221 In paragraph 4 of the Sentencing Guidelines, a youthful offender is one aged between 18 and 35 years of age, and in Regulation 12 of the same Guidelines, the youthful age of an offender can be considered a mitigating factor when imposing a sentence. This Court has for that reason considered the age ofan offender as one of the mitigating factors to be considered in their favour. See for example Atiku Lino versus Uganda, CA Criminal Appeal No. 41 of 2OO9, Anguyo Robert versus Uganda, Criminal Appeal No. 48 of 2OL9, and Kugonza Kenneth versus Uganda, CA Criminal Appeal No. 1O9 of2O11. - 231 We are equally guided by the Supreme Court decision of Aharikundira Yustina versus Uganda, SC Criminal Appeal No.


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⁵ 27 of 2Ol5 that elucidated the consistency principle. The Justices stated that:

> "... it is the court uthile dealing uith appeals regarding sentencing to ensure consistencg utith cases that haue similar facts. Consistency is a uital principle of ^a sentencing regime. It is deeply rooted in the rule of lattr and requires that laws be apptied with equality are in addition guided by the consistency principle when deciding on an appropriate sentence. Trial courts have a similar duty because sentences imposed in previous cases of a similar nature, while not being precedents, do afford material for consideration. See Kakooza versus Uganda, SC Criminal Appeal No.17 of 1993.

24] Both counsel provided a good sample of decided cases on murder. The sentences there appear to suggest quite a wide range from 20 to 50 years. Suffice to say, the decisions of this Court in the cases of Nalule Sarah versus Uganda (supra), Muhwezi Bayon versus Uganda (Supra) and T\rryahika Joseph versus Uganda, CA Criminal Appeal No. 327 of 2OL4, appear to suggest ^a sentencing range of 20 to 30 years for murder. We are not as a Court prepared to establish a sentencing range, which may be outside our mandate. We have instead reviewed the numerous cases both counsel have provided and in addition those resourced by Court. Having done so, we are guided and find that a sentence of 18 years' imprisonment is appropriate in the circumstances of 20 25 30

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- ⁵ this case. From that sentence we proceed to deduct 1 year and three months that the appellant remained on remand. - 25] Accordingly, this appeal succeeds and the appellant shall serve a sentence of 16 years 9 months' imprisonment to run from 25th June 20 19, the date he was first sentenced.

¹⁰ \ d Dated at Arua the ........day of 2024.

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¹⁵ HON. G KIRYABWIRE JUSTICE OF APPEAL

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HON. IRENE A NJ JUSTIC OF APPEAL

a HON. USWATA

JUSTI OT APPEAL

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