[2024] UGCA 223

# THE REPUBLIC OF UGANDA

# IN THE COURT OF APPEAL OF UGANDA AT KABALE

[Coram: M. M. Kibeedi, C. Gashirabake, O. J. Kihika. JJA]

CRIMINAL APPEAL NO. II OF 20I9

#### BETWEEN

10 NTAKIYIMANAINNOCENT APPELLANT

# AND

UGANDA RESPONDENT

(An appeal against the Judgment of the High Court of Uganda I Kaz ibwe Kawumi ,J] at Kabale dated the l't of November 2018)

#### 15

### JUDGMENT OF THE COURT

# Introduction

- 20 l] The deceased (Ndadaye Mwunvaneza Emmanuel alias silvan Didas) was a resident of Gatwe village, Muramba parish, Muramba sub county, Kisoro district. The Appellant and the other accused person were residents of Gitowa village, Bunagana parish, Muramba Sub County in Kisoro District. On the 28'h July 2014 at around 4:00 pm, the deceased left their home and went to Kadihiro trading centre for an evening. At around 6: 00 pm, he was joined by his cousin, a one Nizeyimana vian alias Serumecu, at the centre. As they were returning home, they passed near the building of a one Nzabonimpa Silas. Nizeyimana Vian left the deceased standing at a certain spot as he proceeded to pick his phone that was on charge. Upon his retum, he found when Ntakiyimana had necktied the deceased and Dusabe was also present. They alleged that the deceased was among the thieves that normally steal their properties. 25 - 30

2] He pleaded with the Appellant not to harm the deceased since he was innocent but they refused. Dusabe pulled a knife from his coat and stabbed the deceased at once on his chest and thereafter, Ntakiyimana left

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- ⁵ the deceased to fall and decided to run after Nizeyimana. Nizeyimana Vian reported the matter to one Nzarubara Laurent, the father of the deceased. The father of the deceased and Nizeyimana rushed to the scene and got the deceased lying down in a pool of blood dead and the Appellant was not there. Police at Muramba Police post and Kisoro police station were informed and they arrived at the scene. They later took the body for post moftem examination at Kisoro Hospital and during the process, some blood was extracted for investigation purposes. Ntakiyimana handed himself to the Muramba Police post the same night and Dusabe was arrested on29l 07/2014. 10 - 3] Upon interrogation, Ntakiyimana denied killing the deceased but revealed that he was stabbed to death by Dusabe. Dusabe was interrogated and he confessed to stabbing the deceased but stated that he acted in self defence. He also informed the detectives where he had kept the knife that he used in stabbing the deceased. The Appellant was indicted, tried, convicted, and sentenced to 2l years' imprisonment. 15 20 - 4l The Appellant being aggrieved with the decision of the High Court appealed to this Court. The appeal is premised on four grounds set out in the Memorandum of Appeal as follows: - ^I. The learned trial ,ludge erred in luw and./itct v,hen he held that the Appellant.furmed u usnrmon intention u,ith Dusahe .lulius (A2)(the Appellant in Criminal Appeol No. I ^II of 201 5) to couse the death o/ the deceased , hence reaching a wrong conclusion causing a miscurriuge of .juslic e.

2. The learned trial ,ludge crred in luu, and.litct u,hen he ./biled to properly evuluale lhe eyidence on record regarding the ingredienls o/ malice a.forethought uncl.fbund that proseculion hud proved the .tunra httrtrul rto.utnuhle tbuhl, htntr cttrr.sing u miscu-riugc of

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- ⁵ 3. The learned trial Judge erred in lau, and./itct u,hen he .failed to properly evaluate the evidence on record regarding participation hence ativing al a v,rong decision, causing a miscarriage of .iustice. - 1. ln the alternative wiihoul prejudice. the learned lrial ,ludge erred in law and.fizct when he imposed on the Appellant a sentence of 25 years' imprisonment which is harsh and munifbslly excessive given the circumslances of the case.

#### Legal Representation

5l At the hearing, the Appellant was represented by Mr. Mbalile Mohammed. The Respondent was represented by Ms. Nabasa Caroline Hope, Principal Assistant DPP, and Ms. Nabaggala Grace Ntege Chief State Attomey. The Appellant first filed a Memorandum of Appeal, but later filed a Supplementary Memorandum of Appeal. We shall proceed and consider this appeal on the basis of the Supplementary Memorandum of Appeal. 15 20

# Submissions for the Appellant

- 6] Counsel argued grounds 1 and 2 jointly. Counsel cited section 20 ofthe Penal Code Act that provides for the concept of common intention. Counsel cited Kisegerwa and Another Vs. Uganda Criminal Appeal No.06 of 1978, which elaborated the concept of common intention. - 7l Counsel argued that the trial Judge based the conviction ofthe Appellant on the fact that he had a common intention with A2 (Dusabe Julius) to execute an unlawful act, which led to the death of the deceased. He did not consider factors that disassociated the Appellant from the execution of the alleged unlawful act and the participation in the unlawful act. The trial Judge made his conclusion that the Appellant had common intention. - 8] Counsel argued that the Appellant disassociated himself from the execution ofthe offence when he testified that he was inside his shop/bar when he heard a quarrel outside the bar and moved to find PWl Dusabe

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- ⁵ (A2) and the deceased quarreling. He further testified that when he reached the scene and saw the deceased lying down in a pool ofblood, he ran quickly to call the police. - 9] Counsel submitted that there was no cogent evaluation of evidence placing the Appellant at the scene of the crime and how they participated in the unlawful act. Counsel prayed that this honourable Court finds that he had no intention to kill the deceased. - ^I0] On ground two, counsel argued that the ingredient of malice aforethought was not proved to the required standard by the prosecution and the leamed trial Judge erred in tinding that the same was proved. Counsel argued that malice aforethought is proved by establishing the circumstances provided for under Section l9l of the Penal Code Act. Thus, for a Court to infer that an Appellant killed with malice aforethought, it must consider if death was a natural consequence of the act that caused the death and if the accused foresaw death as a natural consequence of the act. Counsel cited R Vs. Sharmal Singh S/o Pritam Singh and Sharmal Singh S/o Pritam Singh Vs. R [962] E. A 13. - ^Il] Counsel submitted that except for instances in which the perpetrator of the homicide has expressly declared the intention to cause the death ofa person, malice aforethought remains a mental element, the proof of which can only be established by inference, drawn from the facts or circumstances surrounding the homicide. The court therefore has to look at the entire circumstances surrounding the cause of the injury and determine whether or not there were any excusable factors, before making a conclusive inference that malice existed at the time. - l2] Counsel submitted that the fact the deceased was stabbed by ,A'2 Dusabe Julius was not disputed by the prosecution. Counsel prayed that this

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- ⁵ Court finds that the ingredient of malice was not proved to the required standard. - l3] Regarding Ground 4, Counsel submitted that the principles upon which an appellate Court may interfere with a sentence passed by the trial sentencing Court were considered by the Supreme Court in Kyalimpa - Edward Vs. Uganda, Criminal Appeal No, l0 of 1995. - 14] Counsel argued that the sentence of 25 years of imprisonment was harsh and excessive, yet it was trite law that in sentencing there must be consistency. Counsel cited Kalibobo Jackson Vs. Uganda, CACA No. 45 of 2001 and Aharikundira Yusitina Vs. Uganda Criminal Appeal No.27 of2015. - l5l In Suzan Kigula Vs. Uganda, HCT-00-CR-SC-0115, the Appellant was sentenced to 20 years. In Uganda Vs. Uwera Nsenga, Criminal Appeal No. 312 of 2013, was sentenced to 20 years imprisonment. - 161 Counsel argued that in keeping with the principle of consistency the Courts have imposed sentences of range of l5 years to 30 years. Counsel cited Wabwire Iddi Vs. Uganda, Criminal Appeal No. 708 of 2015, where the Appellant was convicted of murder and the sentence of life imprisonment but upon appeal reduced to 12 years' imprisonment. In Anguyo Robert Vs. Uganda, Criminal Appeal No. 48 of 2009. The Court of Appeal reduced the 2}-year, sentence to 18 years' imprisonment. In Kin Erin Vs. Uganda, Criminal Appeal No. 172 of 2013, the life imprisonment sentence was reduced to 18 years of imprisonment. - 17] Counsel prayed that this court exercises its power in section ll of the Judicature Act and impose an appropriate sentence for the Appellant.

### Submissions for the Respondent

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- 18] Counsel for the Respondent argued grounds 1,2 and 3 jointly. Counsel submitted that the learned trial Judge properly evaluated the evidence before the Court and the law. He properly found that the prosecution had proved the case against the Appellant beyond reasonable doubt. Counsel stated that the law on common intention is laid out in Section 20 of the Penal Code Act (Cap 120). Counsel cited Kisegerwa and Another v. Uganda (supra), as cited by the Appellant. Counsel also cited Simbwa Paul vs Uganda, C. A Crim Appeal No. l7l of 2010. 10 - l9l Counsel argued that the uncontested evidence before the trial Court was that on the night of 28'h July 2014 at 8:00 p.m., the deceased (Ndadaye Mwunvaneza Emmanuel), the Appellant, the witnesses, and other people were at Kadihiro Trading Center in Kisoro District. The agreed evidence of the post-mortem examination indicates that the deceased sustained a stab wound in the chest (left supra-mammary area) and he died. - 20] Counsel submitted that in his testimony in Court, Nizeyimana Vian (PW2) testified that as he was leaving the Trading Centre with the deceased, they reached the building where the deceased had a shop. PW2 had left his phone at a salon in the same building. That PW2 went to collect his phone leaving the deceased outside. When PW2 came out of the said salon, he found the Appellant holding the deceased and accusing him of stealing his (the Appellant's) money. At that moment PW2 asked him (the Appellant) what he had stolen. 20 25 - ²1] Furthermore, PW2 testified that A2 (Dusabe Julius) came wearing a coat, pulled out a knife, and stabbed the deceased in the chest while the Appellant was holding the deceased. It was further submitted by PW2 that it was after the deceased was stabbed by A2 that the Appellant released him (the deceased) and he fell. Additionally, PW2 testified further that he made an alarm as he ran outside, and the Appellant ran

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- ⁵ after him (PW2) and started assaulting him. PW2 ran home to call his father and by the time they got back to the scene, they found Ndadaye dead. - 22] Counsel argued that the Appellant arrested the deceased accusing him of stealing his money. By so doing, the Appellant cast the deceased in a bad light as a thief therefore inciting hostility against the deceased. Secondly, the Appellant held the deceased while ,4.2 (the Appellant's employee) stabbed the deceased with a knife. The Appellant incapacitated the deceased thereby denying him any chance to defend himself against A2. The Appellant cut off the deceased's chance to fight back or even flee from 42. - 231 Thirdly, even though the Appellant had leverage against A2 as his employee, he did not aftempt to disassociate himself fiom, A2's actions by stopping him or releasing his grip on the deceased to allow him to save his life. Fourthly, the Appetlant only released his grip on the deceased after the deceased was stabbed in the chest, the Appellant did not attempt to help the deceased who was bleeding on the ground. Instead, they ran after PW2, leaving the deceased to bleed to death. - 24] Counsel retaliated the definition of Malice afterthought as defined under section l9l of the Penal Code and cited by counsel for the Appellant. Counsel argued that the death of the deceased was a natural consequence of the Appellant's acts and omissions and was foreseeable to the Appellant. Counsel argued that the Appellant attempted to "disassociate" himself from the execution of the oflence by raising an alibi. The Appellant testified that he was inside his shop/bar when he heard a quarrel outside the bar and moved out finding PW2 and Dusabe (A2) quaneling. And that by the time he moved from his shop to the scene, he found the deceased lying down in a pool of blood. Counsel submitted that the trial Judge properly rej ected this version of what

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- ⁵ happened as it was an afterthought designed to divert the course of justice. - 251 Counsel submitted that the trial Judge properly found that the Appellant had been properly identified by PW2 at the scene as the conditions were favourable for proper identification. PW2 and the Appellant were village-mates and well known to each other. There was enough light at the scene for proper identification. There was no possibility of mistaken identity. - 26] Counsel prayed that this Court upholds the conviction ofthe Appellant for the murder of Ndadaye Mwunvaneza Emmanuel, and dismisses Grounds I, 2, and 3 ofthe appeal. - 27] In response to ground 4, counsel for the Respondent retaliated the submissions of counsel for the Appellant on the limited powers of the appellate Court in interfering with the sentence passed by the trial Court. Counsel cited Kyalimpa Edward Vs Uganda, ( supra) and Aharikundira Yustina Vs Usanda,(supra). - 28] Counsel submitted that the Appellant was convicted of Murder under sections 188 and 189 of the Penal Code Act, which carries a maximum sentence of death. The Constitution (Sentencing Guidelines)(for Courts of Judicature)(Practice) Directions. 2013, S.l l3-10 prescribes ^a sentencing range of 35 years' imprisonment to death for Murder. Counsel argued that the contention by the Counsel for the Appellant that 25 years is manifestly excessive is not sustainable. Counsel relied on Semaganda Sperito & Anor Vs Uganda, C. A. C. A 456 OF 2016, where a sentence of 50 years' imprisonment was upheld for murder. In Akbar Hussein Godi Vs Uganda, SCCA 03 of 2013, a sentence of 25 years' imprisonment for murder was upheld by this court and confirmed by the Supreme Court. In Oyita Sam Vs Uganda, C. A. C. A 307 of 2010, this court substituted a death sentence with 25 years ⁱ risonment lT)

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⁵ for murder where thc appellant killed his brothcr over a land wrangle. Counsel prayed that this Court upholds the impugned sentence.

#### Consideration of Court.

29] The duty of this Court as a first appellate Court is now settled. It is to reappraise all material evidence that was adduced before the trial Court and come to its own conclusions of fact and law while making allowance for the fact that it neither saw nor heard the witnesses testi!. See Rule 30(1Xa) of the Judicature (Court of Appeal) Rules, Kifamunte Henry Vs. Uganda, Supreme Court Criminal Appeal No. 10 of 1997; and Pandya Vs. R [957] EA 336.

30] The Appellant raised the issue of whether the prosecution established ^a common intention between the Appellant and A2. The doctrine of Common intention is provided for in section 20 of the Penal Code Act in the following terms:

" 20. ,hint olJbnders in lhe prosecution of'common purpose. When two or more persons -fitrm a common intention to prosecute an unlaw.ful purpose in conjunction with one anolher, and in the proseculion oJ that purpose an offence is committed oJ'such a nature thdt ils commission was a probable consequence of the prosecution ol that purpose, each of them is deemed to have commilled lhe ql/'ence. "

3l] It has been held by the Supreme Court and this Court in several cases that under the doctrine of "common intention," it is irrelevant whether the accused person is the one who committed the offence or not. In Kamya Abdullah and 4 others Vs. Uganda, Supreme Court Criminal Appeal No. 24 of 2015, the court relied on the dictum in R Vs. Okule & Others ll94ll 8 EACA where it was held thus;

> " For the principle of common inlenlion lo operale il is not neccssary to estublish that the tu'o -firsl sat to agree on u special

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⁵ plan. llhether or nol the accused wus parl of the common intention can be deduced./iom his or her presence at the scene qf the crime and his or her actions or ./itilure to disassociate himsel from the pursuit of the common inlention. Il is even irrelevanl u,helher the accused person did physically pqrticipate in the actual commission of the q/fences or not. It is sfficient to show that he associated himself v'ith 1l1s vnlata,fi purposes. "

- 32] In the instant case, the prosecution relied on the following evidence to prove common intention, namely: - a. The Appellant held the deceased by lhe neck accusing him of stealing his money. which inciled violence. - b. The Appellant held the deceased while A2 stabbed him. - c. Despite thdl A2 was the Appellant's employee he did not stop him Jiom stabbing the deceased. - d. The Appellant only released the deceased after being stabbed by 42. - e. A.fter the incident, instead of helping the deceased, the Appellant and A2 chased afler PLI/2 leaving the deceased to bleed to death. - 331 In dealing with the Appellant's culpability, the trial Judge held that:

" Prosecution alleges through PW2 that the accused held the deceased by the neck and Dusabe came and stabbed him. Pll2 further stated that the accused chased and assauhed him thereafler The accused claims only lo have witnessed PW2 arul Dusabe running away.from lhe scene of their quarrel wilh the deceased but lefl him lying in a pool of blood. ll is not in dispute that lhere was sufficient light at the scene where the hody was found by Police, PW3, and Pll'{.lt was in front of the hair salon lhat was nexl to the shop owned by the occused.

It is also not in dispute that the accused and Pl/2 knev' each olher well. ln .fact, the accused alleged that Pl4/2 and the deceased were among the people who had helped him construct o house on the fateful day. This is Jurther confirmed by the allegotion qf the accused that he uestion raised b sau, I'W2 und Du:sube running uv'a7,. The importanl q

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5 the Prosecution evidence is whether the holding of the deceased by the accused who did not stob him amounted to commilting the Murder he is indicted for Dusabe admitted to the stabbing and is serting the sentence. The accused told the L'ourt thot when he saw the deceasetl on the ground, he called him three limes bul he did not respond. That he thereafier went to the Police but did not at all raise an alarm to altract lhe attention of anybody in the trading center I do not./ind this lo be the natural reaction of a person who innocently witnesses lhe murder of a person knov)n lo him being committed. The natural reaclion would have been lo raise an alarm to call for help but nol to walk 300 meters to a Police slalion passing houses thal littered the trading center It was also evident that the accused u,as evasive about where he exactly was oI the time the deceased was stabbed. He wavered at Jirst saying he was in the shop but later changed to say he just sow Dusabe and Pll2 running away. I Jind the version ofevidence by Pll/2 more credible. He was emphalic about the accused holding the deceased and Dusabe stabbing him. The accused had earlier intimated lhat the deceased was a thief Dusabe who was employed by the accused came out of the shop to stab the thief. if this reds not the sequence of events, there would be no reason.for the accused to again chase and assault PW2 v,ho was ruising an alarm after \$,itnessing the murder being commilted.

Section 20 ofthe Evidence Act provides:

"ll'hen two or more persons .form a common intenlion lo prosecule an unlawful purpose in conjunction with one another and in the prosecution of thal purpose an olfence is commilted of such a nalure that its commission was a probable consequence of the prosecution o.f thal purpose, each ofthem is deemed to have committed the o.ffence.". The consequence of what Dusabe did is that the accused is also deemed to have committed the o.ffence. h is trite Law lhal lo prove Common intenlion, il is nol necessary) lo proye a prior agyeemenl between the assailants. lt is inferred.from the conduct, presence, and actions qf the accused or .from the .failure of the accused to dissociate himself from the commission of rhe ollbnce. Ugando V trc ts

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## ⁵ Gayiiro & Another 11994-95123 HCB 16; Hajji Muhamad Senyomo Birikadde V Ugondo fi986JHCB 6."

- 34] We find that the trial Judge was alive to the doctrine of common intention. He properly evaluated the evidence on record and properly applied the law to it, hence coming to the right conclusion that the Appellant had common intention with 42. - 351 Regarding the participation of the Appellant, it is trite law that proof of guilt may be established through direct, or circumstantial, evidence. Direct evidence ordinarily means evidence of events as witnessed by any of the five senses, namely sight, and touch. smell, taste, and hearing. In this case, we have direct evidence from PW2 who testified that he witnessed the Appellant hold the deceased by the neck while ,{2 stabbed the deceased. PW2 was the only witness. The test of correct identification was explicitly outlined in Abdala Nabulere & another versus Uganda, 1979 HCB 77, as follows;

"The court must closely examine lhe circumstances in which the identification was made. These include the length of time the accused was under observation. the distance betv'een lhe witness and the accused. the lighting, and the .lbmiliurit.y o/'the witness with lhe accused. All these .factors go to the quality of the identification evidence. lJ the quality is goocl then the danger of mistaken identity is reduced, the poorer the quality the greuter lhe danger"

# 36] In John Katuramu versus Uganda, Criminal Appeal No.2 of 1998 it was held that;

malerial lime. The court musl in every such case examine lhe "The legal position is that the courl can convicl based on evidence ofa single identifying witness alone. However, lhe courl should warn itself of the dunger of the possibility of mistaken identity in such cases. This is particularly important where there are .faclors that present dilficulties .for identification at the

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⁵ testimony of the single witness with the greatest care and where possible look for corroborating or other supporlive evidence. If after warning itself and scrutinizing, lhe evidence the court Jinds no corroboration .for the identification evidence, it can still convict if it is sure thal there is no mistaken identity. "

371 During the hearing PW 2 told the Court that he knew the Appellant. The Appellant and PW2 were village mates. He did not have any grudge against the Appellant. PW2 testified that on 28'h July 2014, he and the deceased were at Kadihiro Trading Center at 8:00 p.m. As they were leaving with Ndadaye, (the deceased) they reached the building where the deceased had a shop, when he remembered he had left his phone at the salon on the same building. He went to collect it and the deceased remained outside. When he retumed, he found the Appellant holding the deceased saying he stole his (Appellant's) money. PW2 asked the Appellant what the deceased had stolen. PW2 further testified that A2 came wearing a coat. He pulled out a knife and stabbed the deceased on the chest. PW2 testified that the Appellant was holding the deceased when ,A.2 stabbed him. The Appellant released the deceased and he fell down. He went on to testifu that he run away while making an alarm. The Appellant and A2 run after him while assaulting him. The Appellant ran after him and started assaulting him. 10 15 25

- 38] In our analysis, the evidence on record satisfied the test of a single identif,ing witness. The prosecution therefore proved the participation of the Appellant beyond reasonable doubt. Grounds 1,,2, and 3 fail. - 39] Lastly, tuming to ground four, for this Court as a first appellate Court to interfere with the sentence imposed by the trial Court, it must be shown that the sentence is illegal, or founded upon a wrong principle of the law, or that the trial Court failed to take into account an important matter or circumstance, or made an error in principle, or imposed a sentence

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- ⁵ which is harsh and manifestly excessive in the circumstances. See Kiwalabye Benard Vs. Uganda, Supreme Court Criminal Appeal No. 143 of 200I and Kamya Johnson Wavamuno Vs. Uganda, Supreme Court Criminal Appeal No. l6 of 2000. - 40] From the Appellant's submissions, the gist of the Appellant's complaint about the sentence is that in the circumstances of this case, the sentence of 25 years imprisonment was harsh or manifestly excessive. - 4l] The Respondent's Counsel disagreed with counsel for the Appellant's submissions and submitted that 25 years sentence was appropriate . It was further submitted that the trial Judge considered both the mitigating and aggravating factors. - 42] When sentencing the Appellant, the trial Court stated thus:

#### "SENTENCEAND REASONS FOR THE SENTENCE

The convicl was .found guilty of murder. He is deemed to be ^a lirst o;/linder since the proseculion doesn'l have a criminal record about him. He has siblings to take care of and the business ./i"om which they should huve eked a livelihootl u,as destroyel ctlier the offence was committed. He pleaded.for the lenience ofcourl and sounded remorse.ful of the circumstances in which the death occurred. I have considered the convict's young age (26 yeurs) and the fact that he is a.first olJinder as .fitctors in mitigation. I ulso consider the ./-dcl lhat he is not a first depyee olJbnder given the circumstances in which lhe death occurred.

It n,us however correclly submilted b), the prosecution that murder is rampant olfence v,hich should be shunned by courts lhrough imposing stiff sentences. A life of an innocent man was losl in very avoidable circumstonces. Such reckless behavior resulting into criminolity should be avoided by all and sundry. Tempering.iustice with mercy, I will sentence lhe convict to 25 years. I u,ill deduct the Years he has spenl on remand, he u,ill serve 2l yeurs sturting.from I i ll / 2O18."

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10 431 Considering the above, Court considered both the mitigating and aggravating factors presented in the allocution proceedings. It is not a legal requirement that in every case the Judge must refer to previously decided cases provided no injustice is occasioned. Though it must be evident that the principle of parity and consistency was considered as set out in principle 6(c ) of the Constitution ( Sentencing Guidelines for Courts of Judicature) Practice Directions, 2013. It provides thus: 5

> " Every Court shall u,hen senlencing an olfender take into account.... The need for consislency with appropriate sentencing levels and other means o.f deuling v'ith offerulers in respect of similar offences commilled in similar circumstances. "

⁴⁴¹The essence of the above provision was set out in Aharikundira Yusitina Vs. Uganda , Supreme Court Criminal Appeal N. 27 of 2015, thus:

> " h is lhe duty of this ('ourt u'hile deoling with appeals regarding senlencing to ensure consislency u,ith oppeals regarding senlencing lo ensure consistency with cases that have similar .facts. Consistency is vital principle oJ'a senlencing regime . il is deeply rooted in the rule of law and requires that law be applied wilh equality and v,ithout unjustifiahle dilJerentiation. "

- 25 30 45] Considering similar cases, this Court upheld a sentence of 35 years imprisonment in Sunday Vs. Uganda, CACA No. 103 of 2006. In Nkurunziza Robert Vs. Uganda, CACA No. 539 of 2016, the Appellant was convicted of murder by strangulation and this Court substituted a sentence of life imprisonment with a sentence of 28 years imprisonment. - 46] Considering the authorities discussed above, we find that the sentence of 2l years' imprisonment, after deducting the years spent on remand, imposed on the Appellant was appropriate in the circumstances of the

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case. We therefore reject the Appellant's argument that the sentence was harsh and excessive.

## **Decision**

- 1. We find that the appeal does not have merit. - 2. The appellant will continue serving his sentence. - 3. The Orders of the Lower Court are upheld.

#### We so Order

| Dated, signed and delivered this | | |----------------------------------|--| | Muraminoiles | |

**MUZAMIRU MUTANGULA KIBEEDI**

**JUSTICE OF APPEAL**

**CHRISTOPHER GASHIRABAKE**

### **JUSTICE OF APPEAL**

OSCAR JOHN KI IKA **JUSTICE OF APPEAL**

$\mathsf{S}$

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