[2024] UGCA 353

-murder<br>plea of guilty<br>-Consistency in sentencing<br>-Sentence reduced from<br>35 years to 19 yrs & 8 months

THE REPUBLIC OF UGANDA

# THE COURT OF APPEAL OF UGANDA AT KAMPALA

(Coram: Buteera, DCJ; Mulyagonja & Mugenyi, JJA)

#### **CRIMINAL APPEAL NO. 86 OF 2018**

NAKIBINGE EDWARD MULANGIRA ....................................

#### **VERSUS**

UGANDA ……………………………………………………………………………………………

(Appeal from the High Court of Uganda at Luweero (Kazaarwe, J) in Criminal Session Case No. 313 of 2012)

## JUDGEMENT OF COURT

#### A. lntroduction

- 1. Mr. Edward Nakibinge Mulangira ('the Appellant') was indicted for the offence of murder contrary to sections 188 and 189 of the Penal Code Act, Cap. 120. The uncontroverted facts as accepted by the trial court are that on 7th April 2016 at about 5.00pm at Mulama Kitebere village in Luweero district, the Appellant and Samuel Babumba Majambere ('the deceased') were embroiled in a quarrel over the former's refusal to let the latter pass through his garden as he headed his way. Shortly thereafter the Appellant struck the deceased with a panga and defrayed any attempts by the people that were present to rescue his victim. - 2. The police and residents of the area later found the deceased dead and lying in ^a pool of blood, and took his body to Mulago City mortuary for post mortem. The Appellant subsequently turned himself in at Kawempe Police Station; was on his own plea of guilty convicted of the offence of murder and sentenced to a custodial sentence of thirty-five (35) years. - 3. The Appellant initially challenged his conviction and sentence but at the hearing of the Appeal amended his memorandum of appeal to depict the following grounds of appeal: - l. The Leamed Trial Judge ened in law and fad when she serlerced (hin to) a nanifestly harsh and excessive againsl the Appellant. - ll. The Leamed Tial Judge ened in law and fact when she passed an ,//ega/ serte nce that did not take into account the peiod Appellant had spent on renand. - 4. Ms. Suzan Sylvia Wakabala represented the Appellant, while Mr. Richard Birivumbuka, a Chief State Attorney appeared for the Respondent.

#### B. Parties' Leqal Arquments

5. Under Ground 7 of the Appeal, it is argued that the Appellant's attack on the deceased was neither premeditated not planned but rather was a spontaneous reaction to the deceased's attempt to forcefully go through his land yet they had a longstanding land wrangle. His plea of guilt is opined to have not only saved the trial court's time and resources but is also an indication of the Appellant's remorse.

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- 6. The trial judge is faulted for not considering the applicable mitigating factors at sentencing in deference to extraneous circumstances such as the prevalence of land disputes. This Court is therefore urged to substitute the sentence handed down by the trial court with a more appropriate sentence that takes into account the mitigating circumstances. With regard to Ground 2, it is learned Counsel's contention that the sentence imposed was illegal as the period that the Appellant had spent on remand was not deducted from the final sentence in violation of the principle advanced in Rwabuqande vs Uqanda, Criminal Appeal No. 25 of 2014 (sc). - 7. Conversely, in response to Ground 7 of the Appeal, learned State Counsel contends that the 3S-year sentence is neither harsh nor excessive. ln his view, the deceased had complied with theAppellant's directive to drive back, only getting out of the vehicle to push it, therefore his murder was unwarranted. lt is further argued that the manner in which the Appellant executed the murder, hacking delicate parts of the body including on the head and neck, would suggest that his actions were premeditated. Furthermore, the fact that the Appellant did at pleataking allude to having previously denied the deceased access through his land is opined to indicate that he had been waiting for an opportunity to murder the deceased. - 8. The Appellant's purported remorse is contested on the premise that when he was given an opportunity to address the trial court in the allocutus proceedings, far from exhibiting any regret he justified his actions. lt is additionally argued that the Appellant plea of guilt was preceded by an attempt by him to hide from the course of justice; two court appearances and the summoning of the prosecution witnesses and therefore the suggestion that he saved the trial court's resources is untenable. It is opined that had the prosecution witnesses not turned up for trial, the Appellant would have maintained a plea of not guilty. - 9. lt is further argued that in addition to the extraneous circumstances objected to by the Appellant, the trial judge considered relevant factors such as the Appellant taking the law into his hands, the finality of the deceased's death, the circumstances under which the murder ensued, the Appellant's age and both

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parties' submissions. ln Counsel's view, there were no other mitigating factors that would have persuaded the trialjudge to hand down a lesser sentence.

- 10. Reference is made to Bakubye Muzamir & Another vs Uqanda. Criminal Appeal No. 56 of 2015 (SC) where the Supreme Court upheld a 40-year sentence for a murder that was committed alongside a robbery and Nashimolo Paul Kibolo vs Uqanda, Criminal Appeal No. 754 ot 2017 (SC) where a 33-year sentence was imposed for murder by hacking Reference is further made to Maqero Patrick & Another vs Uqanda. Criminal Appeal No.76 of 2019 (CA) where a 45-year sentence was imposed by this Court for murder; Nabonqho lbrahim vs Uqanda, Criminal Appeal No. 181 of 2014 (CA)where a 38-year sentence was handed down for murder and aggravated robbery; Senfuka Georqe William vs Uqanda, a CriminalAppeal No. 420 of 2016 (CA) where a 4O-year sentence was considered appropriate for murder by hacking, and Guloba Rooers vs ^U qanda. Criminal Appeal No. 57 of 2013 (CA) where a 3s-year sentence was imposed for defilement followed by murder. lt is therefore proposed that the 35-year sentence in issue presently is neither harsh nor manifestly excessive. - '1 1.ln relation to Ground 2, it is argued that the trial judge did not violate the principle advanced in Rwabuqande Moses vs Uoanda (supra) insofar as she specifically mentioned the two years and 4 months remand period in arriving at her sentence; inmarkedcontraSttothescenarioin@(supra)' where this Court was faulted for not ascertaining the period spent on remand with o certainty. The trial judge thus alleged to have complied with Rwabuqande Moses vs Uqanda (supra) and Nashimolo Paul Kibolo vs Uqanda (supra). - 12.8y way of rejoinder, it is argued that the proposition that the Appellant was waiting in his garden for an opportune moment to murder the deceased is speculative, Counsel for the Appellant reiterating the view that the deceased's murder was a spontaneous act that was neither premeditated nor planned. lt is further argued all the case cited by the Respondent in support of the 3s-year sentence are inapplicable to the present circumstances given that they went to full trial and some involved multiple offences.

13. Deference is made to **Atiku vs Uganda** (2016) UGCA 20 where a sentence of life imprisonment for murder was reduced to 20 years' imprisonment and **Manige vs** Uganda, Criminal Appeal No. 384 of 2017 where a 44-year sentence was adjudged to be harsh and manifestly excessive and substituted with a 21-year With regard to sentences is respect of pleas of guilt, the Court is sentence. referred to Alemiga vs Uganda, Criminal Appeal No. 234 of 2017 where a plea of guilt led to a reduction of a 30-year sentence to 20 years; **Mwerinde Lauben vs Uganda, Criminal Appeal No. 151 of 2013** where a 35-year sentence was on appeal substituted with a term sentence of 27 years and 9 months; **Oyita Sam vs Uganda, Criminal Appeal No. 307 of 2010** where a death sentence for the murder of a brother was substituted with a 25-year sentence, and **Emeju Juventine vs Uganda, Criminal Appeal No. 95 of 2014** where a 23-year sentence for the murder by hacking of a spouse was substituted by this Court with an 18-year sentence. The Court is urged to ensure consistency of sentences as was espoused in Aharikundira Yusitina vs Uganda, Criminal Appeal No. 27 of 2015 (SC).

#### C. Determination

- 14. We propose to address both grounds of appeal together given their interconnectedness. This being a first appeal, it is the duty of this Court is to reconsider all material evidence that was before the trial Court and reach our own conclusions but bearing in mind that we did not have the opportunity to see and hear the witnesses testify. See rule 30(1) of the Judicature (Court of Appeal Rules) Directions, **Kifamunte Henry vs Uganda Supreme Court Criminal Appeal No.** 10 of 1997 and Bogere Moses vs Uganda Supreme Court Criminal Appeal No 1 of 1997. - 15. This Court additionally recognises trial judges' discretion at sentencing as captured in **Kyalimpa Edward vs Uganda, Criminal Appeal No. 10 of 1995** 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 Trial 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 lo an injustice: Ooalo s/o Owousa vs. R (1954) 2'l EACA 270 and R vs. Mohammed Jamal (1948) 15 EACA 126

# 16. The same principle has since been reiterated in Kamva Johnson Wavamuno vs. Uqanda CriminalAppeal No.16 of 2000 and in Kiwalabve vs. Uoanda. Supreme Court Criminal Appeal N0.143 of 2001.

#### 17. ln this case, the Appellant's advocate made the following statement in allocutus:

The convict is 51 years old. From the facts there was a long standlrg issue. The convict came to civil Couds and filed a suit but unfoftunately the dispute was not yet resolved. As a result of the rcpeated conduct of the deceased. the convict acted wrth passlon, at the end of the convict's actions, life was lost. The convict twned himself into police. He has always admifted having commrtted the offence from the onset, a s,gn that he ,s remorseful. ln light of that we pray for a lenient sentence. He has instructed me to apologise to the relatives ol the deceased, naking sentencing detus Is,4 /f a/so acts as a reformative p/ocess. He has been on remand since 19/4nU6. 2years and 4 months.

## 18. The trial judge then discharged herself as follows:

I have listened to the prosecution and heard Counsel for the convict in mitigation. C-auft has taken note of the long standing land dispute between the convict and the deceased that led to the conmission of the unfortunate aime. Land has been at the centre of nany a nurdet and that Coutt looks foryard to a time when the people of Uganda shall not need to take mafters into thei own hands in a bid to proted whal they perceive as theh property. ln the meantine, the deceased, desp,te all his faults is dead and shall nol retum, The convict appears remorseful, as is evidenced by his plea of guifty. lt is tue in ..... On this Court to deter othes fron uimes since as mwder especially in these circunstances. Having considered the two years and 4 nonths spent on rcnand and the age of the convict over 51 years, I sentence him to 35 yearc' imprisonnent.

- 19. lt seems to us that the trial judge did take into account the mitigating factors as laid out by the Appellant's advocate, including the plea of guilt and the underlying dispute between him and the deceased that perhaps pushed him to act that way he did. - 20. However, with respect, she does not appear to have addressed dictates of Article 23(8) of the Constitution as espoused in Rwabuoande Moses vs Uqanda (supra). Whereas the trial judge did mention having taken the remand period into account

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in arriving at her sentence, that does not capture the letter and spirit of Article 23(8) The Rwabuqande case was em phatic on an arithmetic approach to crediting a convict's remand period to him/ her. Accordingly, consideration of the remand period ought to demonstrate a reduction of the period spent on remand from the sentence under consideration, rather than the more generalist approach that was adopted by the trial court in this case.

- 21. Failure to do so would render the resultant sentence unconstitutional and hence illegal. lt thus falls to this Court to set aside the sentence handed down by the trial court and, pursuant to section 11 of the Judicature Act, Cap. 13, undertake the resentencing of the Appellant with due regard to the applicable principles of sentencing. See Livinostone Kakooza vs. Uoanda. Criminal Appeal No.17 of ,993 (SC) and Jackson Zita vs. Uqanda. Criminal Appeal No. 19 of 1995 (SC). - 22. We are alive to the need for consistency in sentencing as stated in clause 6(c) of lhe Constitution (Sentencing Guidelines for Courls of Judicature) (Practice) Directions, 2013 ('lhe Sentencing Guidelines'), which enjoins a sentencing court to 'take into account the need for consistency with appropriate sentencing levels and other means of dealing with offenders in respect of similar offences committed in similar circumstances.' Additionally, it is trite law that a plea of guilt ought to attract some degree of leniency. - 23. Consequently, we would abide the sentencing range of 18 27 years that was adopted in the authorities of Mwerinde Lauben vs Uqanda (supra), Ovita Sam vs Uqanda (supra) and Emeiu Juventine vs Uqanda. (supra) as cited to us by Counsel for the Appellant. Considering the brazen manner in which the Appellant hacked his victim to death, we consider a 2z-yeat custodial sentence more appropriate to the circumstances of this case, subject to the provisions of Article 23(8) of the Constitution.

#### D. Disoosition

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24. ln the result, the Appeal against sentence is allowed. The sentence of 35 years' imprisonment is hereby substituted with a custodial sentence of 22 yeai.s, I@m which we would deduct the 2 years and 4 months spent on remand to yield a sentence of nineteen (1) years and eight (8) months to run from the date of conviction.

It is so ordered

N, Dated and delivered at Kampala this 7t aay ot ......f31................., 2024.

c ard Buteera

Deputv Chief Justice

lrene Mulyagonja

Justice of Appeal

I

Monica K. Mugenyi

Justice of Appeal

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