[2025] UGCA 70

## ⁵ THE REPUBTIC OF UGANDA

# !N THE COURT OF APPEAL OF UGANDA HOLDEN AT MBALE

(CORAM: Mulyagonja, Tibulya, Kazibwe Kawumi. JJA)

# CRIMINAL APPEAL NO. Ol5O OF 2OI2

(Arising from High Court Criminal Session case NO. HCT-04. CR-SC'101 Of 2011 at Pallisa)

### BETWEEN

# NALUKOBA MUZAMIRU APPELLANT

AND

# UGANDA RESPONDENT

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(An apoeal against the decision of Stephen Musota J. delivered on the 2ld day of April 2012)

# JUDGMENT OF THE COURT

20 The appellant was indicted with the offence of murder C/S 188 and 189 of the Penat Code Act and sentenced to 20 years' imprisonment on the 23'd day of April 20t2.

#### Background

- 2s The facts admitted by the trial court are that on 24th March2O2L, a boy friend visited Namubiru Asumati at her home in Buwunga Village, Nasanga Sub-county in Budaka District at about 7:00 pm. She escorted him and as they branched off to the garden for further conversation. The appellant approached them with a machete and the boyfriend fled - 30 for his life leaving Namubiru alone with him

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s On 25 March 202L, Namubiru was found dead by passersby. The body was subjected to post mortem examination and the report revealed that blood was oozing from her mouth and she had been sexually assaulted. The cause of death was established to be spinal shock (cervical spine) coupled with head injury due to manual strangulation of

l0 the neck and blunt injury to the head.

The boyfriend was arrested and he narrated what had happened the previous evening which led to the arrest of the appellant. Others were later arrested and charged with appellant.

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The appellant sought and was granted leave to appeal only against the sentence on the ground that:

1. The learned trial Judge erred both in law and fact when he sentenced the appellant to 20 years' imprisonment without considering the sentencing guidelines.

# Representation

Ms. Kanyago Agnes appeared for the appellant on state brief while Kulu ldambi a Chief State Attorney in the Office of the Director Public zs Prosecutions represented the respondent.

Counset filed submissions which were adopted as their final arguments in the determination of the Appeal.

# Submissions of Counsel for the appellant

Counset for the appetlant argued that the sentence of 20 years' 30 imprisonment imposed by the trial Judge was illegal and unlawful since the trial Judge did not deduct the time spent on remand. Counsel referred the Court to the authority of Walimbwa Geoffrey v Uganda lZO24l UGCA 134 where it was held that the period spent on remand ought to be deducted from the sentence.

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⁵ Counsel also cited rule 15 of the Constitution (Sentencing Guidelines for Courts of Judicature) Practice Directions 2013 and submitted that Courts are required to follow the Guidelines. She argued that whereas the trial judge stated that he considered the time spent on remand, the same was not reflected in the sentencing notes and therefore the remand period was not deducted. 10

Counsel further argued that the failure to consider the remand period offended Article 23 (8) of the Constitution of the Republic of Uganda 1995 which rendered the sentence illegal. The Court was urged to exercise its powers under Section 11 of the Judicature Act to quash the $15$ 20year's imprisonment and deduct the time spent on remand computed to be one (1) year and 11 months, she so prayed.

## **Submissions of Counsel for the Respondent**

20 Counsel for the Respondent filed rather ambiguous submissions on whether the period spent on remand was taken into account by the trial Judge.

It was submitted that before the Rwabugande Moses v Uganda [2017]

UGSC 8 decision it was enough for Judges to mention that they had $25$ taken into account or considered the time spent on remand. The submissions however are concluded with a statement that, for avoidance of doubt, it is incumbent upon this Honourable court to exercise its powers under section 11 of the Judicature Act."

$30$

# Consideration by the court

나는 사이가 나라가 나서 가나는 빨리도

This Court will only interfere with the sentence imposed by the trial Court where the sentence is iliegal or founded upon a wrong principle of the law. Equally, it will interfere with the sentence, where the trial ³⁵ Court has not considered a material factor in the case or has imposed a sentence which is manifestly harsh and excessive in the circumstances.

See Bashir Ssali V. Uganda [2005] UGSC 21 and Livingstone Kakooza V. Uganda [1994] UGSC 17.

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5 It is the contention of counsel for the appellant that whereas the trial judge mentioned that he considered the time spent on remand, he actually did not consider it.

, and the contribution of the contribution $\mathcal{A}$ and $\mathcal{A}$ are contributed in $\mathcal{A}$ . The contribution $\mathcal{A}$

$\mathcal{L}_{\mathcal{A}} = \mathcal{L}_{\mathcal{A}} \mathcal{L}_{\mathcal{A}} \mathcal{L}_{\mathcal{A}} \mathcal{L}_{\mathcal{A}}$

Article 23 (8) of the Constitution of the Republic of Uganda 1995 $10$ provides that:

> "Where a person is convicted and sentenced to a term of imprisonment 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."

The trial Judge heard submissions from the Prosecution and the Counsel for the Convict in aggravation and mitigation of the sentence 20 respectively. We find it necessary to reproduce excerpts from the submissions by Counsel relating to the period the Convict (now appellant) had spent on remand. It was submitted for the Prosecution that:

#### 25 **Resident State Attorney.**

$\mathcal{L}^{\mathcal{A}}(x) = \mathcal{L}^{\mathcal{A}}(x) = \mathcal{L}^{\mathcal{A}}(x) = \mathcal{L}^{\mathcal{A}}(x) = \mathcal{L}^{\mathcal{A}}(x) = \mathcal{L}^{\mathcal{A}}(x)$

"We have no record for the convict. He is a first offender. The convict has been on remand for one year. He was *convicted of a serious offence ……."*

$15$

#### Mr. Okiror.

$\lambda^4(x-t)=\gamma^2/4\lambda$

"The convict has told me that he is a first offender. He has no record. He is remorseful for all the acts he did. I implore court to consider the remand period……"

$35$

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⁵ The sentencing notes by the trial Jqdge are in the excerpt below:

"While sentencing the convict, I will consider the submissions on both sides .l witt consider that he is a first offender as well as the time spent on remand .l will adopt the submissions by the state white asking for a deterrent sentence in the circumstances . A young girl lost life for no apparent reason . She was a victim of'primitive behaviar by village boys like the convict. The convict deserves a deterrent sentence but less than the maximum given that he is a 1'oung man who may reform . He is sentenced to 20 Years.

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We noted that at the time the appellant was sentenced on 23'd April 2016, there was no strict requirement for the sentencing courts to arithmeticalty deduct the time spent on remand from the sentences imposed. The position was clarified by the Supreme Court in Rwabugande v Uganda [2017] UGSC 8, which was delivered on 3'd March 20t7.

The trial Judge incorporated the subrT rissions by the Prosecution and Cournsel for the Convict in his sentencing Ruling. The Judge particularly 2s stated that he had considered the time spent on rernand by the Convict. The period had lreen computed and stated by the Prosecution and Counse! for the convict had also urged the court to take the remand period into account.

i0 lt is the position of the law that a sentence passed by the Court shoulci not be ambiguous as held irr Bigirimana Vicent v Uganda [2019] UGCA 221,. The serrtence imposecl by the trial Coutrt was neither illegal for being arnbiguous nor for failing to take intc account the period spent on remarrd by tlre APPellant.

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s ln Abelle Asuman v Uganda [20181 UGSC 10,the Supreme Court obserrred that;

> "Where a sentencing court has clearly demonstrated that it has taken into account the period spent on rernand to the credit of the convict ,the sentence would not be interfered with by the appellate court only because the sentencing Judge Or Justlces usecl different worcls in their iudgment or missed to state that they deducted the period .spent on rentand. These may be issues of style for which a lower Court would not be faulted when in effect the Court has complied with the Constitutional obligation in Afticle 23(8) of the Cons'titution."

We fincl no met'it in the appeal which is lrereby dismissed.

Signecl, dated and deli,,rerecl at Mbale this"l'l f a", 6"1"ffi5.

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Irene Mu nja Justice of Appeal

A Ma Tihulya Justice of Appeal

[\tl ose.e Kaz i btnre . Kavru m i Justice of Appeal

ari ara ata aar aaa aaa aaa at! ar? 'Or !t aaa ?t a"a oaa aa' a ra

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