[2022] UGCA 95

# THE REPUBLIC OF UGANDA IN THE COURT OF APPEAL OF UGANDA AT MBARARA CRIMINAL APPEAL NO.542 OF2015

(Coram: Egonda-Ntende, Catherine Bamugemereire, Madrama |jA) ORIKIRIZAYORAM BOAZ... ......... APPELLANT

#### VERSUS

UGANDA. ...... RESPONDENT [Appeal from the Decision of the High Court of Uganda at Kabale before Hon. lustice Micheal Elubu dated 30tt Maq ²⁰¹⁴¹

## IUDGMENT OF THE COURT

12 The Appellant was indicted for the offence of Murder contrary to sections 188 and 189 of the Penal Code Act. The particulars are that the Appellant on the 2'L't day of May 2012 at Kijorero cell, Bukora Parish, Kitumba Sub-County in Kabale district, murdered Katabazi Samuel.

#### Background

- IB The facts of the case are that on 20s May 20"12, the deceased approached his children and informed them that he intended to sell a piece of land situated at Omukibungo to take care of his ailing health. The deceased sold the Iand at 1,,700,000/= and was paid cash of 1,000,000/: with the balance to be paid later. The family members including the Appellant witnessed the above transaction. On the 21't - 24 May 2012, the deceased's wife had momentarily left him on his own at home. The facts as accepted by the hial Court were that the appellant finding him alone and vulnerable, pounced on him, tied both hands

and legs with a sisal rope, in'execution' or'kandoya style' and choped his neck using a panga/ killing him instantly. The Appellant grabbed the deceased's money UGX1,000,000/=, placed the panga and disappeared.

- 6 On 5th June 20'1,2, the Appellant turned himself in at Kabale police station and confessed that he was responsible for the death of his father. Apparently he had been hiding in Kampala. He was arrested and detained. The Appellant recorded an extra-judicial statement confessing to have committed the said offence. He was convicted and sentenced to 40 years imprisonment. Dissatisfied with the decision, he sought leave to appeal against sentence only on two grounds namely; 12 - 1. That the Learned Trial Judge erred in law when he convicted the appellant to 40 years, a punishment which was manifestly harsh and excessive in the circumstances upon the appellant.. - 2. That the learned hial iudge erred in law when he sentenced the appellant to 40 years imprisonment and failed to take into account the time the appellant spent on remand, hence the sentence being illegal.

#### Appearances

At the hearing of the Appeal, the Appellant was represented by Mr. Andrew Byamukama on state brief while the Respondent was represented by Ms. Samalie Wakooli, Asst. DPP from the Office of the 24

Director of Public Prosecutions. The Appellant appeared via an online video link from Mbarara main prison due to the prevailing covid-19 conditions.

### Submissions for the Appellant

6 Concerning Ground No. 1 Counsel submitted that the sentence of ⁴⁰ years imposed on the Appellant was manifestly excessive and harsh. He added that there are a variety of authorities where murder sentences have been greatly reduced and substituted with lesser years of imprisonment. He referred to Turyahika ]oseph v Uganda Court of Appeal Criminal Appeal No. 327 of 2014 where this court held that; 72 '...sentences ranging from 20-30 years are appropriate in cases involving murder unless there are exceptional circumstances to warrant a higher or lesser sentence. . .'

Counsel also relied on Tumwesigye Rauben v Uganda Court of Appeal Criminal Appeal No. 181 of 2O13 where the appellant was sentenced to 40 years and on appeal, the sentence was reduced to 20

18 years.

Counsel contended that there is need to maintain uniformity and consistency in the sentencing of convicts. He prayed that this court quashes and sets aside the sentence imposed on the Appellant, as it was manifestly harsh and excessive or in the alternative invoke the powers under S.11 of the ]udicature Act, to use its discretion and 24 impose an appropriate sentence in the circumstances.

Regarding Ground No. 2, counsel submitted that the trial judge while handing down the sentence the trial Judge, never considered nor complied with the provisions of Article 28 (3) of the Constitution which requires court to take into account the period spent on remand. Counsel argued that the trial judge while sentencing the appellant noted that the period spent on remand will be considered but he never asked the appellant or his counsel the time that the appellant had spent on remand, which was illegal.

The Respondent's case

Counsel submitted that for the offence of murder upon conviction, the accused is liable to suffer death. She argued that a sentence of 40 years is less than the death penalty and life imprisonment. That it is neither manifestly harsh nor excessive in the circumstances of this case. She cited the case of Okello Geoffrey v Uganda S. C. C. A No. 34 of 2O14, where court was of the view that sentences of more than 20 years imprisonment cannot be said to be illegal because they are less than the maximum. LZ 18

Counsel added that sentencing is a discretion of the trial Judge and that an appellate court will only interfere with a sentence imposed by the trial court if it is evident that it acted on a wrong principle or overlooked some material fact or its manifestly harsh and excessive.

She sprayed that court dismisses this ground of appeal. 24

In regard to Ground No.2, counsel submitted that at the time the decision of the instant case was made in 20-14, the requirement of mathematical deduction was not a priority. She contended that the requirement of mathematical deductions in Rwabugande was decided on 3'd March 2017 thus cannot be said to operate retrospectively. Counsel submitted that from the court record, the trial judge took into consideration the period the Appellant spent on remand thus the

allegation that Rwabugande was not considered is unfounded.

#### The Duties of the Court at Sentencins

Where an appeal is only against sentence, it is not in doubt that this court has wide latitude in the law to vary or confirm or reverse such a sentence. Several laws grant this mandate. To start with, Section 1.1 the |udicature Act, CAP 13 recognises the jurisdiction of the Court of Appeal. 12

It states as follows:

"For tlrc purpose of hearing nnd detemrining nn ayrpenl, the Court of Appeal slnll hnue all tlte potoers, authority and jurisdiction ?tested under any Tlritten law in tlw court front the exercise of tlrc oiginal jurisdiction of tohich the appe nl ori ginnlly em an ate d. " 18

The Trial on Indictments Act lays down both the law and the procedure of handling criminal appeals from the High Court to the

- 24 Court of Appeal. Section 732 (1) (b) of the T. I. A, Cap 23, states as follows: - (1) Suhject to this Section;

*b)* An accused person may, with leave of Court of Appeal, appeal to the Court of Appeal against the sentence alone *imposed by the High Court, other than a sentence fixed by* law:

*and the Court of Appeal may-*

- (*d*) *Confirm, vary or reverse the sentence and conviction,* - *(e) In the case of an appeal against the sentence alone, confirm or vary the sentence;*

The Court of Appeal can also lawfully alter, increase or decrease a sentence under S. 34(2) of the Criminal Procedure Code Act cap 116. All these sections of the law are procedurally justified under **Rule 32**

- (1) of the Judicature (Court of Appeal) Rules, which states, that; 12 'On any appeal, the court may, so far as its jurisdiction permits, confirm, reverse or vary the decision of the High Court, or remit the proceedings to the *High Court with such directions as may be appropriate, or order a new trial, and make any necessary, incidental or consequential orders, including orders* as to costs.' - In matters of sentence as noted in **Kamya Johnson Wavamuno S. C. C. A No.** 18 **16 of 2000** it has been variously accepted and '... It is well settled that the Court of *Appeal* will not interfere with the exercise of discretion unless there has been a *failure to take into account a material consideration, or an error in principle was* made. It was not sufficient that the members of the court would have exercised their discretion differently.'

This court has a duty to review the circumstances of each case and to see whether it can, vary, alter or confirm the sentence passed against the Appellant. Indeed while meting out the sentence of 40 years imprisonment, the learned Trial Judge had this to say;

"The convict shall be treated as a first offender. The court has taken consideration of the family situation of the accused person. No remorse for his action. The period spent 6 on remand will be taken into consideration. He tied him with a rope cutting his neck. This court cannot think of more cruel act by a son. The offence of murder is rampant in this region and this court must punish it and send out a deterrent message to all of a like mind. The acts of the convict must therefore be severely punished. The actions of the convict have had an obviously adverse effect and it has gone ahead to continue to bring misery by threatening those at home. I have taken the remand period into

*consideration and sentence the convict to serve 40 years in prison."*

We note that, the sentencing regime in Uganda is guided by the Constitutional (Sentencing Guidelines for the Courts of Judicature) (Practice) Directions Legal notice No. 8 of 2013 the purpose of which is *inter a lia*; to provide principles and guidelines to be applied by courts in sentencing; to provide sentencing ranges and other means of dealing with offenders; to provide a mechanism for considering the interests of victims of crime and the community when sentencing and to provide a mechanism that will promote uniformity, consistency and transparency in sentencing.

Paragraph 19 (2) of the Constitution (Sentencing Guidelines for **Courts of Judicature)** (Practice Directions) 2013, enjoins a sentencing

court in the offence of murder to consider the aggravating and 24 mitigating factors in paragraph 20 and 21 of the guidelines and to

determine the appropriate sentence in accordance with the sentencing range.

The sentencing range in determining an appropriate sentence for murder after considering the aggravating and mitigating factors is 30

6 years and up.

> In the instant case, the trial judge considered the mitigating and aggravating factors and sentenced the appellant to 40 years.

> The Supreme Court in Aharikundira v Uganda S. C. C. A No.27 of 2015, Court noted thaU

> " lt is tlu duty of tlis court tplile dealing toith aytpeals regarding sentencing

to ensure consistency urith cnses that hatte sinilar facts. Consistency is n pital principle of n sentencittg regime. It is deeply rooted in tlrc rule of law and requires that laws be npplied with equality and without unjustifable differentiation." 72

A similar principle was laid down in Kiwalabye Bernard v Uganda

#### Supreme Court Criminal Appeal No. 143 of 2001 18

'the appellate court is not to interfere with the 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 imposed to be manifestly excessive or so low as to amount to a miscarriage of justice or where a trial court ignores to consider an important matter

or circumstances which ought to be considered while passing the sentence or where the sentence imposed is wrong in principle.' Z4

In Uganda v LJwera Nsenga, Criminal Appeal No. 312 of 2073 where the accused ran over her husband with a car, at their gate and eventually killed him. She was sentenced to 20 years imprisonment and in Akbar Hussein Godi v Uganda Supreme Court Criminal Appeal No. 3 of 2013 where the appellant shot his wife dead he was sentenced to 25 years imprisonment to mention but a few.

In the interest of justice, fairness and consistency, we are of the view that the sentence of 40 years appears harsh and excessive in the circumstances. It is hereby set aside. Ground No. 1 therefore succeeds.

Regarding Ground No. 2, it is correct as submitted by counsel for the respondent that at the time the sentence was passed, case of Rwabugande was not yet authority, however, a court was dhll required to deduct the period spent on remand. Indeed we agree that this should not be just a mechanical, mathematical deduction but that it should be about the period spent,\on remand in compliance with Article fr (A otthe Constitu tion. ilW,, IZ 1B

The trial judge in this case noted that he had taken the remand period into consideration but did not mention the specific period that the appellant had been on remand. This created doubt as to whether the trial judge really did take into account the said period before passing sentence. We find this failure by the trial Judge to be a fundamental error and requires the setting aside of the whole sentence.

Having found as above that the sentence of 40 years was harsh and excessive and that it was not compliant with article 23(8) we now proceed under s.11 of the Judicature Act to impose a fresh sentence on the appellant. We consider that a sentence of 25years will meet the ends of justice. On this we now set off the period of 1 year,11 months and 25 days the appellant spent on remand. The appellant is sentenced to 23 years, 1 month and 5 days to be served w.e.f the date of sentence. The appeal is hereby allowed.

Dated and Signed this fi.lcrrC 2021-

1Z

Hon. Mr. Justice Fredrick Egonda Ntende Justice of Appeal

Day of

Z4 Hon. Lady Justice Catherine Bamugemereire Justice of Appeal

Hon. Mr. Justice Christopher Madrama Justice of Appeal