[2024] UGCA 357

#### THE REPUBLIC OF UGANDA

### IN THE COURT OF APPEAL OF UGANDA AT MASINDI

Coram: Buteera, DCJ, Obura & Mulgagonja, JJA

### CRIMINAL APPEAL NO. 71O OF 2015

#### BETWEEN

### RUJUMBA PETER:::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::: APPELLANT

#### AND

UGANDA:::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::: RESPONDENT

(An appeal against the decision of Byabakama MugenAi, J deliuered on Vh August 2014 at Hoima in High Court Ciminal Session Case No. 071 of 2014)

### JUDGMENT OF THE COURT

## Introduction

o

o

The Appellant was indicted for the offences of Murder contrary to sectlons 188 and 189 and Aggravated Robbery contrary to sections 285 and 286, both of the Penal Code Act. During the course of the trial he pleaded guilty to both counts and was sentenced to life imprisonment on each count, the sentences to run concurrently. 15

# 20 f,askground

The facts that were admitted by the Appellant were that the deceased Akello Barbra, lived at Lusaka, Kahoora Division, Hoima Municipality at the home of Kajumba Catherine where she was a tenant in the servant's quarters. The said Kajumba was the grandmother of the Appellant and he iived with her in the main house. On 29tn January 2014, at about 9:O0pm, the appellant went to Barbra Akello's house, knocked at her door and she let him in. The two

p- ¹ & 5^\*

were known to be friends but the Appellant went to the room with a knife hidden under his shirt. He grabbed her, blocked her mouth and cut her throat; she died instantly.

The appellant then washed his hands and went back to the main house where he got a panga ar,d an axe. He werrt back to Barbra's room and proceeded to cut her body into pieces. He cut off the arms and 1egs, and the upper body around the pelvic area separating the lower from the upper part. After that he locked the room, washed his hands and returned to the main house.

However, he was so restless that he could not sleep in his own bed. He 10 therefore went to Hilary Isingoma's room and requested that he shares his O bed as he was scared of being alone. At about 5:00am the Appellant returned to the victim's room. He picked up the body parts and threw the legs and arms into the pit latrine together with the soiled clothes. He got a hoe and dug two holes behind the pit latrine where he buried the upper trunk in one ts hole and the lower part in the other. He also threw his blood soaked pair of jeans into the pit latrine.

After that he cleaned himself up and was seen around by Sandra Kembabazi, his cousin. The accused later returned to the deceased's room and took her DVD player and mobile phone. He packed his belongings and very early in the morning set off for Kampala.

On 3ott' January 2014, al 7:OO am Kajumba Catherine found out that the Appellant was not in his room and many of his personal belongings were missing. On searching the room, she discovered a piece of paper under the mattress on his bed. On reading the contents, it was found that the Appellant had a plan to kili Barbra, cut her body into pieces and bury them.

o

Kajumba Catherine then went to Barbra's room. She found that there was blood on the veranda but the room was locked. An effort was made to call

W,

AW

{#

Barbara but she did not respond. When the room was broken open it was discovered that there was a lot of blood splattered all over it. Barbra's body was nowhere to be seen,

5 A report was made to the Police who went to the scene of the crime. With the help of a Police dog, the body parts were found and recovered from the two holes where the Appellant had buried them. The other parts were discovered in the pit latrine together with blood soaked clothes and trvo knives.

All the body parts were recovered from the areas described on the piece of paper found in the Appellant's room. The body parts were taken to Hoima Hospital for a post mortem examination. The police began to search for the Appellant and he was arrested in Kampala at Synagogue Church where he had gone for prayers and a confession. He was transferred to Hoima Police Station where a charge and caution statement was recorded wherein he confessed that he committed both crimes. He 1ed the police to the scene of the crime where the episode was reconstructed.

A post mortem examination was ce:rried out by Dr, Sebwame who found that the deceased died of excessive bleeding after which the body was cut into pieces. The Appellant was also medically examined and found to be 19 years old and of sound mind. The Post Mortem Report and PF24 upon which the Appellant was examined were admitted in evidence at the preliminary hearing.

The police took photographs ofthe body parts of the deceased and the scene of crime. The Appellant was then indicted for the offences of murder and aggravated robbery and he first pleaded not guilty. After the prosecution adduced evidence of three of its witnesses, the Appellant asked to change his plea. He then pleaded guilty and was sentenced to life imprisonment on both counts. Dissatislied with the sentences, he now appeals to this court on one ground as follows:


o

o

Tlrc learned tial judge erred in lato and fact uhen he passed a uery harsh and excessiue sentence of life impisonment in the ciranmstances.

It was proposed that the appeal be allowed, the sentence be set aside and substituted with a lower sentence that is appropriate- The Respondent opposed the appeal.

### Representation

o

o

When the appeal was called on for hearing on 25th March 2024, tlr.e Respondent was represented by Ms Nabasa Caroiyn Hope, Principal Assistant Director of Public Prosecution and Mr Omaset Ignatius, State Attorney. Mr Simon Kasangaki represented the Appellant on state briel

Both counsel hled written submissions as directed by the Registrar before the hearing of the appeai. They each prayed that the submissions be adopted as their finai arguments in the appeal and the prayers were granted.

### Submissions of Counsel

15 Counsel for the Appellant referred to the submissions of counsel for the Appellant on allocutus and his own statement in mitigation of sentence, vis-A-vis the submissions of prosecuting counsel. He then submitted that there were numerous mitigating factors that were advanced and he reiterated them. That given the fact that he also pleaded guilty and asked for forgiveness, the trial judge ought to have been lenient in determining his sentence. He invited this court to impose a sentence of lO years' imprisonment. 20

Counsel then drew the attention of the court to sentences that had been imposed against convicts for similar offence and asserted that the sentence that was imposed upon the Appellant was harsh and excessive in the circumstances. He prayed that we set it aside and re-sentence the Appellant, zrs he proposcd. P ⁴ Ir\*'t .+1k


In reply, counsel for the Respondent raised preliminary points of law to challenge the propriety of the appeal. The first was that the Appellant was sentenced on 7tt August 2Ol4 but he lodged his Notice of Appeal on 3oth December 2015, one year and 4 months later. She submitted that this offended section 28 (1) of the Criminal Procedure Code Act (CPC). She further pointed out that the Appellant did not apply for extension of time within which to appeal.

She went on to submit that though he appealed against sentence only, counsel for the Appellant did not apply for leave to do so contrary to section 132 of the Trial on Indictments Act. She thus prayed that the appeai be dismissed.

Counscl for the Appellant filed submissions in rejoinder to the Respondent's reply. However, he did not Respondent to the two points of law raised by counsel for the Respondent. Neither did he address them when the appeal was ca1led on for hearing on 25th March 2024.

### Analysis and Determination

o

o

Section 28 (1) of the CPC provides that every appeal shall be commenced by a notice in writing which shall be signed by the appellant or an advocate on his or her behall and shall be lodged with the registrar within fourteen days ofthe date ofjudgment or order from which the appeal is preferred.

The Appellant pleaded guilty to the offences for which he was indicted, on 4ti, August 2Ol4- He was then sentenced on 76 August 2014 and the trial Judge informed him that he could appeal against the sentence that was imposed. His notice of appeal, thumb printed by himself on 3l"t Dcccmbcr 2O15, was

Iiled in the Registry of this court on the same day. It was never endorsed by the Registrar. 25 ⁵ &t tu


Counsel for the Appellant ought to have carefully perused the record ofappeal availed to him but it is evident that he did not do so. He also ought to have paid more attention to the submissions of the Respondent where the point of law challenging the notice of appeal was raised but he did not do so.

5 In addition, the Appellant pleaded guilty and he could only appeal against the sentence that was imposed upon him. At the time that the appeal was iodged, section 132 (1) (b) of the TIA provided as follows:

# (b) an accused person may, with leave ofthe Court ofAppeal, appeal to the Court of Appeal against the sentence alone imposed by the High Court, other than a sentence fixed by law;

Appeals against sentence are therefore different from appeals against conviction and sentence that are of right, as it was provided for in section 132 (1) (a) of the TIA.

It is unfortunate that counsel for the appellant did not exercise vigilance in this appeal. He did not consider the fact that the state paid him to take care of the interests of the Appellant, a right that is guaranteed by the Constitution of the Republic of Uganda. He literally 'slept on the job.' 15

In view of the serious lapses in the process of bringing this appeai, we have no alternative but to declare that the appeal now before us was illegal and incompetent. It could not be entertained by this court and it is hereby struck out.

Dated this day of {r,.^+a/ ²⁰²⁴ e

Richard Buteera DEPUTY CHIEF JUSTICE

o

o

Hellen Obura JUSTICE OF APPEAL

$\mathsf{S}$

$\overline{z}$ $\mathrel{\smile}$ $\alpha$ Irene Mulyagonja

JUSTICE OF APPEAL