[2021] UGCA 227

sentence of Life imprisonment for murder set aside<br>substituted with a substituted<br>a sentence of 28 yrs because the trial judge didnot give HE REPUBLIC OF UGANDA to the mitig

### IN THE COURT OF APPEAL OF UGANDA AT MASAKA

### CRIMINAL APPEAL NO. 539 OF 2016

(Arising from Criminal Session Case no. 105 of 2013)

NKURUNZIZA ROBERT :::::::::::::::::::::::::::::::::::: $\mathsf{S}$

Versus

UGANDA :::::::::::::::::::::::::::::::::::

CORAM: HON. JUSTICE CHEBORION BARISHAKI, JA

### HON. JUSTICE STEPHEN MUSOTA, JA

HON. JUSTICE MUZAMIRU MUTANGULA KIBEEDI, JA

### **JUDGMENT OF COURT**

The appellant was indicted and convicted of the offence of Murder contrary to sections 188 and 189 of the Penal Code Act and sentenced to life imprisonment.

The appellant was dissatisfied with the sentence of the trial court and with leave of this Court under S. $132(1)$ (b) of the Trial on Indictments Act he appealed against sentence only on a sole ground that;

The learned judge erred in law and fact when he imposed an illegal and manifestly excessive sentence on the appellant without full regard to available mitigating factors on record.

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## Background

5 The appellant and one Maani, who is on the run, were employees of the deceased and residents of Kalyamenvu village, Lyantonde district. In the night of 16th November 2012, the deceased together with his worker, Maani, left his home and headed for the farm to interrogate the deceased's workers about a visitor's mobile phone which had gone missing and later discovered in the compound. The ^O deceased never went back home that night, which prompted his wife to mount a search for him. On 17th November 2072 lhe deceased's wife received information that her husband had been murdered at their farm and his body was still lying there. The matter was reported to police and investigations commenced. 10

While the police were on their way to the scene of crime, they received information that the appellant had been arrested by a mob and they were planning to lynch him. The appellant was arrested and while at the police, he confessed to having killed the deceased by O strangulation and the rope that was used was recovered at the scene of the crime. 15

#### 20 Representation

At the hearing of the appeal, Mr. Tusingwire appeared for the appellant while Mr. Birivumbuka, Chief State Attorney appeared for the respondent. Both parties filed written submissions.

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# Appellant's submissions

Counsel relied on item 5 of the Constitution sentencing guidelines and submitted that sentence is aimed at denouncing unlawful conduct, deterring a person from committing an offence and promoting a sense of responsibility by the offender. For court to impose an imprisonment for life sentence, court shall consider the factors aggravating or mitigating the death sentence. Counsel submitted that the fact that an accused/appellant is a first offender warrants leniency in mitigation.

Counsel submitted further that the period the appellant spent on remand was not taken into account by the learned sentencing judge. Counsel relied on Article 23(8) of the Constitution and argued that it is a mandatory requirement that the period the appellant spent on remand be taken into account. Counsel invited this court to find that the sentence is illegal for reasons that the remand period was not considered by the learned trial Judge.

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## Respoadent's submissions

In reply, it was submitted for the respondent that whereas the learned trial Judge did not take into account the remand period, Article 23(8) does not apply to life imprisonment and death sentences because the remand period has no consequence on the sentence. Counsel relied on the Supreme Court decision in Magezi Gad Vs Uganda S. C. C. A No. 17 of 2Ol4 in which Article 23(8) was

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discussed and found to be inconsequential to death and life imprisonment sentences.

Counsel submitted that thc offence with which the ap1'rellant was convicted carries a maximum sentence of death and as such, a life imprisonment sentence was neither harsh nor excessive in the circumstances of the case. That the learned trial Judge considered both the aggravating and mitigating factors of the case and passed an appropriate sentence. The appellant murdered his employer in cotd blood for no reason at all. The appellant was a friend to the O deceased and they would sometimes spend nights together at the kraal. Counsel prayed that the appeal be dismissed and sentence upheld.

# Consideratiou of the appeal

The position of the law on sentencing is that an appellate court will not interfere with the sentence imposed by a trial court unless there has been a failure to exercise discretion or take into account a material consideration or where an error in principle was made by the trial court. In Bernard Kiwalabye Vs Uganda S. C Criminal Appeal No. L43 of 2OO1 (unreported), the Supreme Court held that; 15

"The appellate court is not to interkre with the sentence imposed bg a tial court where that tial court has exercised its discretion on sentence, unless the exercise of that discretion ls such that it results in the sentence imposed to be manifestlg excessiue or low as to amount to a miscarriage of justice or u)here the trial court ignores to consider an important rnatter or circumstance tuhich

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ought to be considered while passing sentence or uhere the sentence imposed is wrong in principle."

The foregoing principles are applicable in the instant case. While sentencing, the learned trial Judge held that;

"The accused took a life that u.tas blossoming. He denied the children of the deceased to parenthood. He denied the widow a husbond. He taas not remorseful during the trial. Such q person needs to be kept awag from societg so that he does not hqnn other liues. TTte ma.nner in which the murder was planned shotus a character of a seasoned ciminal. In the result, I sentence him to life in pison"

In our view, the learned trial judge did not consider the mitigating factors. The sentence was based largely on the aggravating factors and therefore, we have no option but to set it aside.

This court has the same powers as the High Court, pursuant to Section 11 of the Judicature Act which it will invoke and sentencc the appellant afresh. It states, 15

# '7 7. Court oJ Appeal to hanrc powers of the court of original jurisdiction.

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For the purpose of heaing and determining an appeal, the Court of Appeal shall haue all the powers, authoity and jurisdiction uested under ang ulitten latu in the court from the exercise of the original juisdiction of uhich the appeal originallg emanated'

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In this case, the appellant was a first offender, had been on remand for 1 month, he confessed to having killed the deceased thus did not waste court's time. On the aggravating factors, we notc that the appellant murdered his employer with malice aforethought, he denied the deceased's children a right to parenthood and committed a gruesome offence that carries a maximum sentence of death.

Having considered both the aggravating and mitigating circumstances of the case and the period the appellant spent on remand, we are satislied that a sentence of 28 years imprisonme.rt O from the date of conviction of 22"d December , 2016 will meet the ends of justice in this case. This appeal therefore succeeds.

Dated tni" -124.v or L) 202L

Hon. Justice Cheborion Barishaki, JA

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²⁰ Hon. Justice Stephen Musota, JA

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Hon. Lady Justice Muzamiru Mutangula Kibeedi, JA

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