[2025] UGCA 72

## THE REPUBLIC OF UGANDA

# IN THE COURT OF APPEAL OF UGANDA AT MBALE

[Coramt Mulyagonja, Tiburya & Kazibwe Kawumi, JJAJ

## CRIMINAL APPEAL NO. OIT| OF 2OI2

NANGAI STEPHEN........... ....... APPELLANT

### VERSUS

UGANDA ......... RESPONDENT

(An appeal arising fro\* the decision of the High Court of Uganda at Mbale in Criminal Case No. t t9 of 2010 before P. K Mugamba, J dated 27tt,June, 2012)

- ^l' This is an appeal against sentence only. The appellant was indicted on two counts' In the first count, he was indicted with murder contrary to sections l gg and 189, while he was also indicted with aggravated robbery contrary to sections 285 and 286 (2) of the Penal Code Act in the second count. - 2' The particulars of the murder were that on 9th day of April z1l1at Malinga village, Kapchorwa District with malice aforethought, the appellant and others still at large murdered Manget Alex. - 3' The particulars of the aggravated robbery were that on 9th day of April 21lo at Malinga village, Kapchorwa District, the appellant and others still at large robbed Manget Alex of Motorcycle Registration No. UDN 452T and during the robbery stabbed him with a knife.

### Background.

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4. According to the prosecution, on 9th April z0lo at about 7:00 pm, the deceased who was a boda boda rider at Kamus Market, was hired by the

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appellant to take him to Kaserem. On the wdy,the appellant was joined by the others including Nabumala Michael and Chemuswa Pius. The Appellant and his accomplices stabbed the deceased and later escaped on the deceased,s motorcycle. The deceased was picked up from the roadside and taken to Kaserem Police Post from where he was taken to the hospital. He later died from the hospital.

- 5' The next day, the appellant was found in possession of the deceased,s motorcycle and was arrested. He named Nabumala and Chemuswa as the ones he had been with during the robbery. His accomplices were eventually arrested from Kampala. A cell phone with names similar to those of the deceased inscribed on it was found on Chemuswa. - 6' The appellant and his accomplices were indicted for murder and aggravated robbery. The two co-accused were acquitted of all charges while the appellant was convicted on two counts as charged. He was sentenced to 40 years, imprisonment on each count with an order that the sentence was to run concurrently. - 7. Dissatisfied with the sentence, he appealed on the following ground: -

"The learned trial Judge erred in law and fact when he sentenced the Appellant to an itlegal forty year (40) custodial sentence which was harsh, excessive and without consideration of the pre-trial remand period hence causing a miscarriage of justice to the Appellant.o'

### Representation.

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8. At the hearing, the appellant was represented by Mr. Eddie Nangulu while the respondent was represented by Mr. Aliwali Kizito,Chief State Attorney.

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### Submissions by Counsel.

- 9. It was submitted for the appellant that the learned judge failed to consider the remand period while sentencing him. This, it was argued contravened Article 23(8) of the Constitution. In support of this argument, counsel cited AG V Susan Kigula & 417 ors Constitutional Petition No. 3 of 2006, Abasa Johnson v uganda sccA No. 54 of 2016 and Bukenya Joseph v uganda SCCA No. l7 of 2020, in which the Supreme Court held that a courr must take into account the remand period and that failure to consider it renders the sentence illegal. Counsel thus asked court to quash the sentence of 40 years for being illegal. - lO'The respondent concedes that the learned judge did not consider the remand period as required under Article 23(8) of the Constitution and that the sentence of 40 years is therefore illegal.

### Consideration of the appeal.

^II.lt is trite Iaw that an appellate court cannot interfere with the sentencing discretion ofthe trial court unless the trial court acted on some wrong principle or that it overlooked some material facts or imposed a sentence that is manifestly high or low so as to cause a miscarriage ofjustice. See: Kiwalabye Bernard vs. uganda, SCCA No. 143 of 2001. the court held: -

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"The appellate court is not to interfere with sentence imposed by ^a trial court which has exercised its discretion on sentence unless the exercise of the discretion is such that it results in the sentence

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imposed to be manifestly excessive or so low as to amount to ^a miscarriage of justice or where a triar court ignores to consider an important matter or circumstances which ought to be considered when passing the sentence or where the sentence imposed is wrong in principle."

l2. Consideration of the remand period is a constitutional requirement under Article 23(8) of the constitution which provides follows:

> "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."

I3.while sentencing the appellant, the learned judge stated that: -

"The convict has been found guilty of murder in one count and aggravated robbery in the other. He mercilessly caused the death of Alex Manget. He is not remorseful. I agree with the learned State attorney that offences such as those the convict committed are rampant and should be punished so the perpetrators feel the full force of the law. I have noted all that has been said in mitigation.

I sentence the convict to 40 years' imprisonment on count one and ⁴⁰years on count two. The sentences are to run concurren tly." (see page 7 4 of the record of appeal) A\

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l4' As was rightly conceded by the Respondent, the above sentencing order indicates that the learned judge did not take into account the appellants remand period, as required under Article 23(8)of the Constitution. The sentence of ⁴⁰ year's imprisonment which was imposed on the appellant is therefore illegal. We hereby set it aside.

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- I5'Since the sentence is illegal, it is not necessary for us to consider the argument regarding its harshness and excessiveness. - I6' Instead, we invoke this court's powers under section I I of the Judicature Act to sentence the appellant afresh. - l7'While the court had sentenced the appellant to 40 years imprisonment on each count and ordered that the 4O-year sentence was to be served concurrently, we note that counsel crafted the ground of appeal in general terms without specifying to which of the two counts (murder and aggravated robbery) the appeal relates. This was erroneous. The ground of appeal should have been clear about which of the two counts it relates. - l8'Since we have found the 40-year sentence illegal, we shall re-sentence the appellant on both counts. - l9'It was submitted in mitigation that the appellant was a first offender who was young at the time of the commission of the offence (20 years old). He had spent 2 years and 2 months on remand and that he had family responsibilities.

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- 20.1n aggravation of sentence it was submitted that the appellant committed serious offences which were rampant in the area, and that the deceased died for no other reason except his business. - 21. We have considered the relative young age of the appellant. We have also considered that he had a family to look after, and that he had been on remand for 2 years and 2 months a period we shall deduct from the sentence we shall give to the Appellant. While we have considered that he is a first-time offender, we note the cruelty with which the offence was committed. - 22' lt is now established that a defendant's being remorseful is a mitigating factor. We shall take that fact into account as well. The other key factor in sentencing is the requirement that the court ensures that sentences are uniform. In this regard, we have looked at the case of Bakubye Muzamiru & Jumba Tamale Musa v Uganda SCCA No. 56 of 2015, in which the appellants were convicted of murder and aggravated robbery and were sentenced to 40 years and 30 years imprisonment respectively, with an order that the sentences should be served consecutively. The Court of appeal decided that the sentences should run concurrently but never reduced the sentences. On further appeal, the Supreme court upheld the sentences. - 23.1n Guloba Rogers v Uganda GACA No. s7 of 2013, the appellant was convicted for murder and aggravated robbery and sentenced to 47 years imprisonment on each count to run concurrently. This court reduced the sentence to 35 years imprisonment on each count to run concurrently and deducted the t year and 5 months spent on remand.

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- 24.rn more recent cases such as Tumusiime & another vs uganda, ²⁰¹⁶ UGCA 73, the appellants were convicted of murder and aggravated Robbery. They were sentenced to l6 years and l4 years imprisonment respectively with an order that the sentences were to run concurrently. This court was of the view was inordinately low and amounted to a miscarriage ofjustice due to the circumstances of the case in respect of the offence of murder because it was premediated and compounded by aggravated robbery. The court stated that had the appellants raised a complaint about the severity of their sentence, it would have been enhanced to 35 years imprisonment. - 25.1n onyambo Bosco vs Uganda (2017 UGSC l9s) the appellant was convicted of murder and aggravated robbery. He was sentenced to 45 years imprisonment in respect of murder while the sentence for aggravated Robbery was suspended. On appeal, this court set aside the sentence and sentenced the appellant to 20 years imprisonment for murder and l8 years imprisonment for aggravated Robbery. - 26. Drawing on the above authorities and having taken into account both the aggravating and mitigating factors that were brought to the court's attention, and the range of sentences for the offences of murder and aggravated robbery in the above-cited authorities, which range from 35 to 47, we find that ^a sentence of 40 years' imprisonment on each of the two counts, to be served concurrently, is appropriate in the circumstances of this case. - 27. Since the appellant had been on remand for 2 years and 2 months. We deduct that period from 40 years, meaning that the appellant will serve 37 years and

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l0 months' imprisonment from the 27,h of June 2012, the date of his conviction

28. The appeal succeeds in the terms indicated above

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