[2023] UGHCCRD 61

## THE REPUBLIC OF UGANDA IN THE HIGH COURT OF UGANDA AT KAMPALA CRIMINAL DIVISION

**MISCELLANEOUS APPLICATION No. 192 OF 2022**

(Originating from Criminal Session Case No. 920 of 2016 And Criminal Session Case No 074 of 2014)

1. OROMA DAVID a.k.a OPIO PETER $\cdots \cdots \cdots \cdots \cdots \cdots$ 2. DOKA RAHAMAN

**APPLICANTS**

versus

**UGANDA**

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**RESPONDENT**

## **BEFORE: HON. JUSTICE MICHAEL ELUBU RULING**

This application is commenced by Notice of Motion under Article 139 (1) of the Constitution of The Republic of Uganda, Sections 33 of the Judicature Act, and Rules'2 and 3 of the Judicature (Criminal Procedure) (Application) Rules S. I. $13 - 8.$

The applicants, Oroma David a.k.a. Opio Peter and Doka Rahaman, seek an order that:

1. The respective terms of imprisonment imposed/passed against the applicants herein do run from the respective dates on which they were imposed/passed and otherwise.

There are several grounds on which this application is premised properly set out in the Notice of Motion and elaborated in the supporting affidavits deposed by each applicant.

It is stated that the applicants, jointly charged 3 others stood trial in Entebbe, stood trial before His Lordship Yasin Nyanzi, in Criminal Session Case No 920 of 2016. They were tried on 5 counts of Aggravated Robbery c/s 285 and 286 (2) of the Penal Code Act and 1 Count of Attempted Murder c/s 204 of the Penal Code Act. On the 2th of October 2017, they both pleaded guilty and were sentenced to 11 years imprisonment of each count.

On the 8^th of December 2017, the applicants appeared before the Hon Justice John Wilson Kwesiga in High Court Criminal Session Case No. 369 of 2014. They entered a plea bargain with the state and were both sentenced to 10 years imprisonment.

It is averred that they have both been informed by the Uganda Prisons Authority that that they will serve the two custodial prison sentences consecutively. They contend this is unlawful, unfair and prejudicial to their interest and rights. They state that the sentences should begin each begin to run on the day it was passed unless the contrary was ordered.

As a result, the first sentence of 11 years should commence running on the 5^th of October 2017 and the second on the 8^th of December 2017.

The parties in this application were given directions on the 30^th of March 2023. It is only the applicant that put in submissions. Despite service on the 3^rd of April 2023, the Office of The Director of Public Prosecutions has neither filed an affidavit in reply, nor filed submissions.

$\mathbf{2}$

I have studied the pleadings and submissions on record but will not reproduce them here.

## **Determination**

The argument of the applicants is that they were tried in two separate trials and convicted, then sentenced to 2 different prison terms. The first sentence of 11 years was handed down on the 5^th of October 2017. On the 8^th of December 2017, they were sentenced to 10 years imprisonment in the second trial.

The applicants submit that the Uganda Prison Authorities have informed them that the two sentences shall run consecutively. It is argued that position is contrary to Section 106 (2) of The Trial On Indictments Act which stipulates that subject to the express provisions of this or any other law to the contrary, every sentence shall be deemed to commence from and to include the whole of the day of the date on which it was pronounced.

For that reason, the sentences should be deemed to run as from the dates they were handed down and there is no basis for the decision to make them run consecutively. It is also stated that this Court in Matovu Kenneth vs Uganda Criminal Revision No. 394 of 2014 held that where there are several sentences from different trials, all the sentences do run concurrently.

Additionally, the applicants cite Clause 16 of The Constitutional (Sentencing **Guidelines of the Courts of Judicature Practice Directions) 2013 which provides** that except where a custodial sentence is in default of payment of a fine, every custodial sentence shall be effective from the date of conviction.

This application has been commenced under Section 33 of The Judicature Act which states,

The High Court shall, in the exercise of the jurisdiction vested in it by the Constitution, this Act or any written law, grant absolutely or on such terms and conditions as it thinks just, all such remedies as any of the parties to a cause or matter is entitled to in respect of any legal or equitable claim properly brought before it, so that as far as possible all matters in controversy between the parties may be completely and finally determined and all multiplicities of legal proceedings concerning any of those matters avoided.

Section 39

(1) The jurisdiction vested in the High Court by the Constitution, this Act or by any other enactment shall be exercised in accordance with the practice and procedure provided by this or any other enactment or by such rules and orders of the court as may be made or existing under this Act or any other enactment.

(2) Where in any case no procedure is laid down for the High Court by any written law or by practice, the court may, in its discretion, adopt a procedure justifiable by the circumstances of the case.

There is no set procedure regulating an application of this nature. It is also the position that the applicants have not furnished any evidence of an order specifying that the sentences in these two matters shall be served consecutively. That notwithstanding, this court shall make a determination of this question considering that the matters raised by the applicants are grave but also pertinent and probably affect other inmates/convicts as well. It therefore serves the interest of justice that the court resolves the matter to settle the manner in which the sentences imposed shall be served.

It is true that Section 106 $(2)$ directs that all sentences shall commence on the day of the date they were pronounced. It is also true that the Section is subject to any other provision in the TIA. This would therefore mean that the provision holds as long as the Trial On Indictments Act does not make a contrary but specific directive in another section, regarding the manner sentences should be served.

In this case Section 122 $(1)$ of the TIA is specific. It stipulates,

Where a person after conviction for an offence is convicted of another offence, either before sentence is passed upon him or her under the first conviction or before the expiration of that sentence, any sentence of imprisonment which is passed upon him or her under the subsequent conviction shall be executed after the expiration of the former sentence, unless the court directs that it shall be executed concurrently with the former sentence or of any part of it; but it shall not be lawful for the court to direct that a sentence of imprisonment in default of payment of a fine shall be executed concurrently with a former sentence under section $110$ (c) (i) or and part of it.

In this case, the default position is that all sentences are cumulative unless otherwise provided by the sentencing Court. Additionally, where a convict who is serving sentence on one matter, is sentenced in another case before the expiration of the previous sentence that he or she is already serving, then the sentences shall run cumulatively.

It is permissible for a court to order sentences arising from two separate trials to run concurrently, but the court will normally only make such an order where the offences, though tried separately, arose out of the same series of acts or transactions. In Chilemba vs R [1969] E. A. 497 the court was faced with a question where convictions were arrived at in two different trials before different magistrates. The Court held that all the charges should have been brought together, and if that had been so, then the court would have imposed concurrent sentences.

In this instant case there is no such evidence on record. The complaint is that the convicts were serving an earlier sentence at the time they entered a plea bargain. They contend therefore these being separate trials, both sentences should run from the dates they were pronounced as provided in Section 106 (2) of the TIA.

However, in view of the unequivocal position stated in the Section 122 (1) of the TIA above, that position is untenable in law, as the sentences were pronounced following two separate and distinct trials, one in Entebbe and the other in Kampala. There is no evidence that the charges arose out of the same transaction, series of acts or were otherwise connected.

In the result the application is dismissed and the sentences shall run cumulatively.

**Michael Elubu** Judge 13.06.2023