[2025] UGCA 136

### THE REPUBLIC OF UGANDA

## IN THE COURT OF APPEAL OF UGANDA AT ARUA

[Coram: Geoffrey Kiryabwire, JA; Irene Mulyagonja, JA; Eva K. Luswata, JA]

### CRTMTNAL APPEAL NO. CIq&A)F 20:z,.

(Arising from High Court Criminal Session Case No. 427 of 2020 at Gulu)

### BETWEEN

ORINGA WALTER APPELLANT

#### AND

UGANDA RESPONDENT

(An Appeal from the Judgment of the High Court of Uganda by Hon. Justice Tom Chemutai, J delivered on 02nd December 202 1)

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## JUDGMENT OF THE COURT

### Introduction

The appellant was indicted and convicted of the offence of aggravated defilement c/s 129(3) and (4) (c) ofthe Penal Code Act Cap 120.

### The Facts

The appellant on the 3l't October 2019 at Pawiro Mede Pupwonya South village, Pupwonya Parish, Atiak Sub-county, Amuru District, when HIV positive, performed a sexual act on the victirn, a girl under the age of 18 years. Police Form 3. A (PF 3. A) showed the victim to be about l4 years old and of abnormal mental status. Police Form 24A (PF24) showed the appellant to be HIV positive, 30 years old and of sound mind.

## Decision of the Trial Court

The Trial Judge convicted and sentenced the appellant to l6 years' imprisonment. Dissatisfied, the appellant appealed against conviction and sentence on the following grounds: -

- 1. The learned trial Judge erred in law and fact when he proceeded with the trial in the presence of a single assessor which occasioned miscarriage ofjustice to the Appellant. - 2. The leamed trial judge erred in law and fact when he failed to properly evaluate the evidence before him thus reaching a wrong decision. - 3. The learned trial judge erred in law and fact when he sentenced the appellant to a harshjail term of 16 years.

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The respondent opposed the Appeal.

At the hearing, the appellant was represented by D. Mbasa of Alma Associate Advocates and the Respondent by Immaculate Angutoko Chief State Attomey.

The parties sought the leave of court to adopt their written submissions as their legal arguments in this Appeal which was granted.

#### Powers of the Appellate court

This is a first Appeal. We are alive to the dufy of a first appellate Court which was espoused in the case of Kifamunte Henry v Uganda SCCA No.10 of 1997 to reappraise all the evidence at the trial and come up with our own inferences of law and fact.

On the alternative ground of contesting the sentence that had been passed, we are also alive to the decision in Ogalo s/o Owoura v R (1954) 2l EACA 270. In the appeal, the appellant appealed against a sentence of 10 years' imprisonment with hard labour which had been imposed for the offence of manslaughter. On the relevant principles to interfere with sentence, the East African Court of Appeal in that appeal held that: -

"... The principles upon which the appellate court will act in exercising its jurisdiction to review sentences are firmly established. The Court does not alter a sentence on the mere ground that if the members of the court had been trying the Appellant they might have passed a somewhat different sentence and it would not ordinarily interfere wilh the discretion exercised by the trial Judge unless as was said in James v R, (1950) 18 EACA 147, "il is evident that the Judge has also acted upon wrong principle or overlooked some materialfactor. " To this wewould also add a third criterion, namely, that the sentence is manifestly excessive in view of the circumstances of the case. An appropriate sentence should be proportionate to the offence with the gravest offence attracting less severe penalties. Courts also have added another principle ofconsistency in terms of equality before the law so that the offences committed under similar circumstances with similar degree of gravity should

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attract the same range of sentences therefore precedents of the appellate courts are a relevant guiding actor ... "

We shall apply the above principlcs to this appeal.

# Ruling on a preliminary point of Law

Counsel for the respondent raised a preliminary point of law arguing that, pursuant to Section 28(l) of the Criminal Procedure Code Act, an appeal has to be lodged with the Registrar within 14 days of the date of the judgement or order from which the appeal is preferred. The appeal was filed on the 51h September, 2022 when judgment was delivered on the 2nd December, 2021. The foufteen days within which the Appellant had to file the appeal had therefore lapsed.

Further, the respondent had not sighted a memorandum of appeal or been served with a copy of the same, pursuant to Rule 66(l) of the Court of Appeal Rules. It was argued that under Rule 66(5), such a failure was fatal and could in fact result into dismissal of the appeal.

Further, the Respondent contends that the second issue raised by the Appellant offends the provisions of Rule 66(2) of the Rules (Supra), in so far as it fails to specifr exactly what point of law or fact or mixed law and fact, or the evidence the Appellant contends was wrongly decided and is argumentative. In the case of Seremba Dennis V Uganda CACA No. 480 of 2017, the Court of Appeal struck out two grounds one of which read: -

"...the learned Judge erred in law and fact when he failed to properly and adequately evaluate the evidence before him as a whole thereby arriving at a wrong conclusion."

Thus Counsel prayed Court strike down the second ground.

In Reply to the preliminary objection, Counsel for the appellant agreed with the Respondent's Counsel in the position of the law, which is to the effect that the Notice

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of Appeal must be lodged with 1 4 days. Counsel contended that the Appellant at the tirne of filing his Notice of Appeal, was serving a sentence, and as a lay person could not understand the provisions of the law.

He in addition relied on Section 30 of the Criminal Procedure Code Act Cap 116 (CPC) which provides that:

"...if the Appellant is in prison he or she may present any document relating to his or her appeal to the oficer in charge of the prison who then forwards the document to the registrar, and for the purpose of Seclion 28 on the date of the presentation, any such document shall be deemed to have been lodged with the registrar." Hefurther argued that under Section 28(6) CPC, "the Appellate Court may, for good cause shown, extend the periods mentioned in subsection (l) or (3). "

According to the Court record, the notice of appeal was filed on 5th September 2022, when the Appellant was serving a sentence. Counsel thus prayed for leave to validate the Memorandum of Appeal that was filed by the Appellants advocates on 31'r October 2023.

Secondly, Counsel for the appellant submitted that, with regard to the objection on the second issue, where Counsel for the Respondent argued that it offended Rule 66(2) of the Courl of Appeal Rules, the said issue was not argumentative as alleged. The Appellants had specifically laboured to specifically point out the Trial Judge's failure to evaluate the evidence.

We have addressed our minds to the submissions of both Counsel and for that we are thankful.

Indeed, an Appeal should be lodged within l4 days ofthe Judgment, but considering that the Appellant was already incarcerated, it is understandable that this was difficult for him to do so. Thus Section 28(6) allows the said extension of time. Fufther Article 126(2) (e) of the Constitution of the Republic of Uganda enjoins courts to administer substantive justice without undue regard to technicalities. It is therefore our finding that this is a fit and proper matter for us to extend time and

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validate the Notice of Appeat and Memorandum of Appeal now before us. The first prelirninary point of law is overruled.

However, the second objection is granted, considering the second ground clearly offends Rule 66(2) of the Court of Appeal Rules. The Rule dictates that the memorandum must clearly and specifically state the grounds of objection to the decision appealed against, with distinct points of law or fact (or mixed law and fact). The second ground is general, and is therefore struck down.

Ground No.l: The learned trial Judge erred in law and fact when he proceeded with the trial in the presence of a single assessor which occasioned miscarriage of justice to the Appellant.

## Submissions of Appellant

Counsel for the Appellant argued that the trial Judge proceeded with a hearing ofthe case with the participation of a single assessor which contravenes the provisions of the Trial on Indictment Act Cap 23 and other laws of Uganda. Further that, in the instant case, on the 25tl'October,202l, when the case came up, two assessors Ongom Alfred and Ms. Ajok Nighty, both took oath, then the matter was adjourned to 5'l' November 2021 . At the next hearing only Ongom Alfred was present, as Ajok Night had given birth and could not participate. Counsel contended that the Trial Judge went ahead with the trial and allowed the opinion of a single assessor, Ongom Alfred who found the Appellant guilty resulting in a miscarriage ofjustice. Counsel prayed that the trial be declared a nullity, and the Appellant released.

## Submissions of Respondent

Counsel for the Respondent contended that although the Trial Judge proceeded with one assessor, it was not fatal and neither did it occasion a miscarriage ofjustice to the Appellant. The absence ofAjok Night was for a good reason, and in essence, the role of an assessor was advisory and does not bind the Judge. According to the Record of Appeal at page 20, paragraph 25, the single Assessor was present throughout the trial and rightly advised the learned Triat Judge to find that the (

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#### Submissions of the Appellant in rejoinder

Counsel for the Appellant questioned whether the role of Assessors had become irrelevant in Criminal trials. Counsel further wondered whether trial courts are at liberty to breach the law especially the provisions of the Trial on Indictment Act. He emphasised that the law on Assessors has never been amended to say that they are irelevant in criminal trials and that the law has remained ernphatic on Assessors.

Counsel submitted that a miscarriage of justice does occur when a trial proceeds without the aid of two assessors. In this case, the Appellant was prejudiced of a fair trial because of panicipation of a single Assessor.

#### Findings and Decisions of Court

We have considered the submissions of both Counsel for which we are grateful.

Under this ground we have addressed ourselves to Section 3(1) of the Trial on Indictment Act Cap 23 (TIA) which provides that:

"except as provided by any otherwritten law, all trials before the High Court sholl be with the aid of assessors, the number of whom shall be two or more as the court thinks fit. "

The Court in Abdu Komakech Vs Uganda, SCA No. I of 1988 held that: -

" ...we find thal the trial judge sat u,ith only one assessor throughout the trial. This irregularity is fundamental as it goes to jurisdiction. It has occasioned a miscaruiage ofjustice and it is not therefore curable under Section 137 of the Trial Indictment Decree. On this ground alone the appeal would succeed. "

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From the trial Court record dated 251r' October 2021, two assessors Ongom Alfred and Ajo Night both took oath. But on 5rh November 2021, when the case was to be heard, only Ongom Alfred was present, due to Ajok Nighty taking absence after giving birth.

We have also taken into consideration Section 69( 1 ) of the TIA which provides that:

" ...|f, in thc cotrrse o/ ct trial be/bre the High Court ot an.\, lime be/ore the t,erdict, an' ossessor is .fi'on st(ficient c'ott.\e prevetied ./i'om attending tltrougltr:tut the triol. or ubsents hintselJ or hcrseU. und it is not practicoble immetliotely ro cn/brce his or her altendonce, llrc lrial slull proceet{ tlitlt lhe uitl o/ tlta other assessors. "

The facts in the above case, Abdu Komakech V Uganda (Supra) are distinguishable from those in the current case, in that,, the second assessor was an imposter which means that from the beginning, Court only proceeded with one assessor. In the current case, Ongom Alfred and Ajok Night were both appointed and took oath, and the accused took plea. Ajok Night did not continue as an assessor because she had given birth and there was no objection from both parties for the trial to the presence of a single assessor.

It is clear to our minds that counsel for the Appellant never raised an objection in respect to the proceedings regarding the absence ofthe second Assessor. In the case of Byaruhanga Fodori Vs Uganda CACA No.24 of 1999, the honourable Court after ernphasizing that although it does not condone failure of trial courts to strictly adhere to provisions of the TIA regarding assessors, held the following:

"... In order to determine whether infact any miscarriage ofjustice occuned, the role of the assessors, in our criminal justice system must be taken into account. Their importance in advising a trial judge on matters offact cannot be underestimated. However, their role is merely advisory and not binding on the trial judge. While their role might have been very important when the judges were foreigners and therefore not ocquointed with our customary laws and usages, their role is diminishing with the replacement offoreigners with Ugandan judges. In our view, failure to record the particulars ofthe assessors

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or whether they were sworn in or not does not cause any miscarriage of justices. The judge could obtain their particulars and even swear them in but fail to record the fact. Where the Defence is represented by Counsel and no objection is raised, the accused cannot be said to have been prejudiced when he only remembers to raise such a matter on appeal. Similarly, if trial with a single assessor can be permitted when the other assessor(s) absent himself, we do not see any big difference when the trial starts and ends with assistance of a single assessor. This ground of appeal must in our view fail."

The law remains emphatic on the relevance, and use of assessors in aiding criminal trials and the number of assessors to be present. However, the presence of only one assessor, is not fatal and does not occasion a miscarriage of justice.

We resolve this ground in the negative.

# Ground No. 3: The learned trial judge erred in law and fact when he sentenced the Appellant to a harsh jail term of 16 years.

## **Submissions of Appellant**

Counsel for the Appellant submitted that in the instant case, that a jail term of 16 years is not only harsh but equally excessive in the circumstances of the case. The Trial Judge had already noted that the Appellant is HIV positive and there was no previous criminal record against him, hence there was no need to pass a sentence of 16 years.

### **Submissions of the Respondent**

Counsel for the Respondent submitted that sentence is at the discretion of the Trial Judge and an appellate court will only interfere if the Trial Court acted on a wrong principle or overlooked some material facts, or the sentence was manifestly harsh and excessive. Counsel argued that that aggravated defilement under Section 129(4) of the Penal Code Act carries a maximum sentence of death. The victim was 14 years

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old, mentally unstable and the Appellant was HIV positive at the time of commission of the offence. Therefore, the sentence of 16 years was within the range of appropriate sent€nces.

### Submissions of the Appellant in Rejoinder

Counsel submitted that the Trial Judge under looked the mitigating factors raised by the Appellant during allocutus to pass a sentence that is harsh and excessive in the circumstances. Counsel reiterated his earlier prayers.

# Findings and Decisions of Court

We have considered the submissions of both Counsel for which we are grateful.

Under this ground we have addressed ourselves to Rule 32 ofthe Judicature (Court of Appeal Rules) Directions SI-13-I0 which provides that,

" ... On any appeal, the Court may, so far as ils jurisdiction permits, confirm, reyerse 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. "

In the case of Kyalimpa Edward Vs Uganda SCCA No.10 of 1995, it was held that,

" ...an appropriate sentence is a matter ofdiscretion for the sentencing Judge. Evety case presented its own facts upon which a Judge exercises discretion. It is a practice that as an appellate court, this court will not normally interfere with the discretion of the sentencing of the Judge unless the sentence is illegal or unless Court is satisfied that the sentencing of the trial Judge was manifestly excessive to amount to an injustice. "

Counsel for the Appellant referred Court to the case of Mwerinde Lauben Vs Uganda Court of Appeal Criminal Appeal No.15l of 2013, where this Courl held that: -

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"... Having subjected all the circumstances as regards the sentencing of the appellant, carried out by the trial jtrdge, to fresh scrutiny and having resemblance to one ofthe appellant, wefind the sentence of35 yeors' imprisonment imposed upon the appellant by the trial court was harsh and excessive. "

We then addressed our minds to argument from the Respondent and the case of Mutebi Ronald Vs Uganda CACA No.0383 of 2019,, where the Court confirmed a sentence of 23 years' irnprisonment as appropriate, where the Appellant was convicted of Aggravate Defilement and the aggravating factor was his HIV positive status.

In the case of Bulutwanimana Juma Vs Uganda CACA No. 198 of 2019, this Court upheld the sentence of 30 years' imprisonment where the victim was 1 5 years old and the Appellant was HIV positive.

In the case of Ntare Augustine Vs Uganda Criminal Appeal No. 053 of 2011, the Appellant was convicted of Aggravated Defilement of a victim of 11 years old, and sentenced to 25 years.

In consideration ofboth parties, with regard to the excessiveness and harshness ofa sentence, we first considered that aggravated defilement is a capital offence that attracts the death penalty. Further, we considered, parity of sentence which show a range of sentences where the Appellant is HIV positive and the victim very young, which lar exceeds the l6 years given.

We then considered, mitigating factors which were taken into account, as there is no contention as to mitigation.

Finatly, we have considered the harshness and excessiveness of the sentence, as the current case can be distinguished from Mwerinde Lauben v Uganda(supra) where

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a sentence of35 years was considered to be harsh and excessive. In the current case, the Appellant was given 16 years, which vastly contrasts from 35 years.

We accordingly resolve this ground in the negative.

### Final Decision

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Having held as we have on the above issues,, we now Decide and Order that the Appeal is dismissed.

### We so order.

| p'(,"<br>i)'t c^-<br>ir.<br>(}.r-<br>Day of<br>,ll]<br>of 2025.<br>Thisl. )J<br>Dated at | |------------------------------------------------------------------------------------------| | | | Hon. Mr Jus<br>ice Geoffrey Kiryabwire, JA | | | | Hon. Ladv J<br>Irene Mulyagonja,<br>A | | | | stice Eva K. Luswata, JA<br>Hon. Ladv | | |