[2025] UGSC 16

## THE REPUBLIC OF UGANDA IN THE SUPREME COURT OF UGANDA AT KAMPALA SCCA NO. 63 OF 2019 [CORAM: Tibatemwa-Ekirikubinza, Musoke, Madrama, Bamuaemereire, Mugenvi, IJSCI 1. ODEKE PETER

2. FTUDI MICHAEL **\*\*\*\*\*\*\*\*\*\*\*\*\*\*\*\*\*\*\*\*\*\*\*\*\*\*\*\*\*\*\*\*\*\*\*\*\*** 3. OBWANA GODFREY

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#### **VERSUS**

**UGANDA \*\*\*\*\*\*\*\*\*\*\*\*\*\*\*\*\*\*\*\*\*\*\*\*\*\*\*\*\*\*\*\*\*\*\*\*\*** [An appeal arising from the decision in Consolidated Criminal Appeals No. 284 of 2014, 287 of 2014 & 429 of 2014 before Cheborion JA, Musota JA, and Tuhaise JA dated the 8th of November 2019 at Jinja]

## **IUDGMENT OF THE COURT**

### **Introduction**

This is a second appeal arising from the Court of Appeal's decision, which upheld the appellants' convictions and sentences imposed by the High Court of Uganda at Jinja Circuit.

### **Background**

The appellants were indicted for the offence of Murder contrary to sections 188 and 189 of the Penal Code Act. The

three appellants were each tried and convicted and sentenced 25 to 25 years' imprisonment.

The facts as garnered from the lower court record reveal that on the $11^th$ day of June 2007 the appellants went to the home of Atebat Aiseri (the deceased). The trial court found that by his confession, the $1^st$ appellant admitted that he lured the deceased to a garden where he strangled her. He then sought the assistance of the $2^{nd}$ and $3^{rd}$ appellants. The trio dumped of

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the body in a bush behind her pit latrine. A week later the body was recovered by the deceased's grandchild. Investigations led to the arrest of the appellants. Upon arrest, the $2^{nd}$ and $3^{rd}$ appellants made charge-and-caution statements implicating themselves singularly and severally including the $1^st$ appellant. After a full trial, the High Court convicted the appellants and sentenced each of the three to 25 years' imprisonment.

The three appealed against both conviction and sentence. The $10$ Court of Appeal dismissed their appeals, upholding the convictions and sentence

Dissatisfied with the decision of the Court of Appeal, the appellants appealed to this Court on the following ground: -15

> That the learned Justices of Appeal erred in law when they upheld an illegal sentence which is inconsistent with previous judicial precedents.

The appellants prayed that the appeal be allowed and that the 20 sentence of 25-years' imprisonment be substituted for a sentence of 20-years' imprisonment.

## **Representation**

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At the hearing of this appeal, Ms. Sarah Awelo appeared for the 25 appellants on the state brief, while Ms. Happiness Ainebyona, the Chief State Attorney, appeared for the respondent. The appellants were present in court. Both counsel proceeded by

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way of written submissions, which this Court relied on in arriving at this judgment.

#### Submissions for the Appellants $\mathsf{S}$

Ms Awelo, Counsel for the appellants submitted that this appeal is premised on the ground that the prison sentence was illegal and inconsistent with previous judicial precedents. She further argued that the 25-year sentence was harsh and excessive. She relied on Kiwalabye Bernard v Uganda SCCA No. 143 of 2001, to argue that appellate courts ought to not interfere with sentences unless they are manifestly excessive, based on wrong principles, or if the trial court failed to consider material factors.

Counsel placed emphasis on the principle of consistency in sentencing relying mostly on Kamya Abdullah & 4 Others v Uganda SCCA No. 24 of 2015 [2018] UGSC 12, and Aharikundira Yustina v Uganda SCCA No. 27 of 2015 where she argued that the years of imprisonment ought to align with 20 established sentencing principles. Counsel for the appellant submitted that the court is responsible for maintaining consistency in cases with similar facts when handling appeals related to sentencing.

Counsel prayed that the appeal be allowed and the sentence of $25$ 25 years be substituted with one of 20 years' imprisonment.

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# Submissions for the respondent

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Ms Happiness Ainebyona for the respondent invited this court to not interfere with the sentence of 25 years, contending that it was neither excessive nor based on any error in principle. Counsel distinguished the cases cited by the appellants, asserting that they involved different factual circumstances. Counsel argued that the appellants' actions demonstrated premeditation, malice aforethought, and cruelty as they targeted a defenceless elderly woman over a land dispute. She

cited Karisa Moses v Uganda SCCA No. 23 of 2016, where the 10 Supreme Court upheld a life sentence for the murder of a family member.

Counsel invited this court to folllow Akbar Godi v Uganda SCCA No. 3 of 2013, where a sentence of 25 years' 15 imprisonment for the premeditated murder of a spouse was upheld.

Counsel submitted that in the instant appeal, the trial judge considered all the aggravating and mitigating factors and 20 found that the aggravating factors outweighed the mitigating factors prior to sentencing the appellant to 25 years' imprisonment. The Learned Justices of Appeal confirmed the sentences against each appellant. Counsel prayed for the appeal to be dismissed. 25

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## Determination of the Appeal

This is a second appeal. As the Supreme Court, we are not only alive to but are conscious of the limits of the jurisdiction of this Supreme Court as a final appellate court. The Constitution sets out the limits of our jurisdiction as follows:

# 132. Jurisdiction of Supreme Court

## Right to appeal judicial decisions

1. The Supreme Court shall be the final court of appeal.

**2.** An appeal shall lie to the Supreme Court from such decisions of the Court of Appeal as may be prescribed by law.

Indeed, an appeal lies to the Supreme Court from decisions of the Court of Appeal as prescribed by the law. In this case the law that prescribes the jurisdiction of this court in criminal 15 matters is the Judicature Act CAP 13 which under the recently released volumes of the Laws of Uganda is now CAP16.

An appeal to the Supreme Court from sentence is possible only if it concerns a matter of law of great public importance.

#### **5. Appeals to the Supreme Court in Criminal Matters** 20

(3) In the case of an appeal against a sentence and an order other than one fixed by law, the accused person may appeal to the Supreme Court against the sentence or order, on a matter of law, not including the severity of the sentence.

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# Courts will ordinarily defer to the discretion of the appellate court and trial courts in imposing sentences unless the sentence raises questions of law.

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In Abelle Asuman v Uganda (CA No. 66 of 2016) [2018] UGSC 10 (19 April 2018) which cited with approval Okello Geoffrey v Uganda SCCA No.34 of 2014, and established the principle that:

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"Section $5(3)$ of the Judicature Act does not allow an appellant to appeal to this Court on severity of sentence. It only allows him or her to appeal against sentence only on a matter of law..." Accordingly we shall not consider issues of the sentence being harsh or excessive since that goes to severity of sentence. The appellant has no right of appeal on severity of sentence.

In Karisa Moses v Uganda SCCA NO.23 of 2016, it was observed that:

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"This court has repeatedly emphasized that under section 5 $(3)$ of the Judicature Act, an appellant is precluded from appealing against a sentence on the *ground of severity."*

Further, in Nzabaikukize Jamada v Uganda [2017] UGSC 30 $\overline{20}$ (20 September 2017) it was held that:

> "First and foremost we have to point out that the ground of appeal on severity of sentence is barred by law. Section 5(3) of the Judicature Act prohibits grounds of appeal based on severity of sentence..."

It is trite that an appellant has a right of appeal only against

the legality of the sentence, not its severity as stipulated by Section 5(3) of the Judicature Act.

We note with concern that several appellants lodge their appeals against the severity of sentence under pretext that it can pass scrutiny under section 5(3) of the Judicature Act. To $\mathsf{S}$ this end the appeals appear as undisclosed or disguised questions of law for interrogation before this court. A granular look at counsel for the appellants' arguments exposes her arguments as undisguised submissions on excessiveness of the sentence. She laboured, unsuccessfully, to prove the 10 existence of inconsistency with previous judicial precedents which loophole the court could use to look into the severity of sentence passed against the appellants. Counsel for the respondent was non-the wiser. She did attempt to delve into the jurisdiction of this court but rather attempted to 15 distinguish the factual circumstances of the case law referred

to, entirely missing the point.

is upheld.

In conclusion we find that this appeal is not brought to this court in conformity with the law. Instead, we find that it to be a pretext. An appeal disguised as a question of law when 20 indeed it is against severity of sentence. We have no cause to believe that these sentences raise a question of law so as to warrant our intervention. An appellant is precluded from

appealing to this court on grounds of severity of sentence. The appeal is dismissed. The sentence of 25 years' 25 imprisonment as imposed against each of the three appellant

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Dated at Kampala this ... $\frac{1}{1}$ hay of April ....................................

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in usalemme.

HON. LADY JUSTICE PROFESSOR LILLIAN TIBATEMWA-EKIRIKUBINZA JUSTICE OF THE SUPREME COURT $10$

HON. JUSTICE ELIZABETH MUSOKE JUSTICE OF THE SUPREME COURT

HON. JUSTICE CHRISTOPHER IZAMA MADRAMA JUSTICE OF THE SUPREME COURT

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HON. LADY JUSTICE CATHERINE K BAMUGEMEREIRE JUSTICE OF THE SUPREME COURT

HON. LADY JUSTICE MONICA K MUGENYI JUSTICE OF THE SUPREME COURT

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