[2025] UGCA 149

#### THE REPUBLIC OF UGANDA

## IN THE COURT OF APPEAL OF UGANDA AT MBARARA

## **CRIMINAL APPEAL NO.249 OF 2019**

#### **RUZIRA ROBERT**

#### **APPFILANT**

**RESPONDENT**

## **VERSUS**

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#### **UGANDA**

(An appeal against the decision of Kavuma, J. delivered on 21^st November 2018 in Mbarara Criminal Session Case No.28 of 2017)

(Coram: Kazibwe Kawumi, Nakachwa & Kakooza Sabiiti, JJA)

## JUDGMENT OF THE COURT

The appellant was indicted with the offence of murder contrary to sections 188 and 189 of the Penal Code Act. He was on his own plea of $20$ guilt sentenced to 24 years' imprisonment on 21^st November 2018.

### **Background**

The appellant was the father of Kankunda Phiona who was 3 years old at the time the offence was committed on 1/12/2013. On that date, the 25 appellant told his father that the child had disappeared. A report to the effect was made to Migina Police Post. A search was conducted around the village but as residents were suspicious of the appellant and he was arrested.

The appellant confessed that he strangled the deceased and threw the body is a bush and he led the Police to the spot where the rotting body was found.

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- The Post mortem report on the body of the deceased confirmed that she died of strangulation. The appellant was charged with murder to which he pleaded guilty and was accordingly convicted. The appellant filed an appeal on the following two grounds; - 1. The learned trial Judge erred in law and fact when she failed to follow the right procedure in recording a plea of guilty.

# 2. The learned trial Judge erred in law and fact when she imposed a manifestly harsh and excessive sentence

It was proposed that the conviction should be quashed or the sentence be reduced in the alternative.

### Representation

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At the hearing of the appeal on 21^st May 2025, the appellant was represented by Mr. Masereka Chan Geoffrey. The Respondent was represented by Ms. Aineebyoona Happiness holding brief for Mr. Oola Sam from the Office of the Director Public Prosecutions. Counsel for the parties filed submissions which were with the leave of the court adopted as their final arguments in the determination of the appeal.

#### **Submissions by Counsel for the appellant** $25$

The fist ground of appeal relates to the alleged failure by the trial judge to correctly take the plea by the appellant.

It was argued by Counsel that the trial Judge did not adopt or follow the statutory procedure of taking a plea of guilty as set down in Adan V R

[1973] EA 445. It was submitted that the ingredients of the offence were 30 never read or explained to the appellant in a language he understands. It is on that basis that the appellant wants the conviction quashed.

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The second ground of appeal relates to the imposed sentence being harsh $\mathsf{S}$ and excessive. It was submitted that an appellate court will only interfere with the sentence of the trial court if there is an illegality such as where the trial court acted contrary to the law or upon a wrong principle or overlooked a material fact. Counsel cited Jackson Zita V Uganda, SCCA

No.19 of 1995 (un reported) for the proposition. $10$

Counsel opined that given the mitigating factors brought to the attention of the court, the imposed sentence of 30 years was harsh and excessive. The appellant was a first time offender, he was remorseful and had a family to care for. The Court was urged to find the sentence imposed harsh and excessive given the mitigating factors raised in favour of the appellant.

## **Submissions by Counsel for the Respondent**

Counsel for the respondent submitted that the proper procedure for plea $20$ taking was followed by the trial Judge. The Indictment was read and explained to the appellant in the language he understands and the essential ingredients of the offence were explained to him. The facts were read to the appellant who responded with his version but agreeing to have unlawfully caused the death and throwing the body in a swamp. $25$

It was submitted that no miscarriage of justice was thus occasioned to the appellant since the known procedure for plea taking was complied with by the Court.

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Relating to the second ground of appeal, it was submitted that determining an appropriate sentence is a matter for the discretion of the sentencing court and an appellate court can only interfere for stated reasons. It can do so where the sentence is illegal, is manifestly harsh or

excessive or so low as to cause an injustice. 35

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The court can also interfere where there was a failure to take into account $\mathsf{S}$ a material factor or where there was an error in principle or a failure to exercise discretion. It was submitted that the imposed sentence was neither harsh nor excessive given the circumstances of the case. The appellant kicked his own child and tried to conceal his heinous act by throwing the body into a swamp.

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Counsel cited the case of Mwikirize William v Uganda [2023] UGCA 232 in which this Court upheld a Life sentence imposed on the appellant who killed his own child. Counsel further cited Murindwa James v Uganda [2022] UGCA 105 in which this Court upheld a Life sentence imposed on the appellant who caused the death of a friend and tried to conceal the crime by throwing the body in water. Counsel further referenced Okiru Isiah alias Opolot v Uganda [2023] UGCA 333. The appellant was found guilty of strangling his child and dumping the body in a stream. The Court upheld a sentence of 36 years imposed by the trial Court. We were urged to dismiss the appeal.

## **Consideration of the Appeal**

In order to determine the first ground of appeal relating to the alleged failure to properly take the appellant's plea, we found it necessary to reproduce the relevant excerpt of the proceedings by the trial court.

"21/11/2018

**Accused present: Ruzira Robert Counsel on state brief: Arinaitwe** State Attorney: Emmy Grace **Court:** Indictment read and explained to the accused in **Runvankore**

Accused: It is true (PG)

**Prosecutor:** Brief facts

**Court:** Assessors take oath. Mr. Tindimwebwa and Ms. Friday Helen

**Accused:** No objection to the assessors.

**Brief facts:** The accused person was the father of Kukunda Phiona aged 3 years. She was staying with him. On 1/12/2013 the accused informed Musiime Lazaro the grandfather of the deceased that the deceased had disappeared. Migina Police Post was informed. A search was going on. People were suspicious because the accused had custody of the deceased. Accused was arrested, he confessed on 1/12/2013 that he strangled her and threw the body in the bush. He led Police to the bush where the deceased's body was found decomposing. A Post mortem report showed that the cause of death was strangulation. The accused was accordingly charged with murder.

**Court:** Are the brief facts correct?

**Accused:** Yes it is what happened at about 6.00pm while at home with other young children, the mother left me with the children. I gave them milk and went to get cows. The child followed the mother while crying, I went to where she was to bring her back. I was tired of the child disturbing me, I kicked her in the back with aum boots, she started crying and fell down. I took her to Dr. Ivan the nearest

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hospital, on the way the child died before I reached the hospital. Because I was drunk and afraid, I threw the body in a river and I did not take the body to my father. I told father and uncle. I pray for leniency.

**Court: Ingredients of murder explained.**

**Counsel for the accused:** I seek an opportunity to speak to the accused.

#### Later;

Court as before.

Counsel for the accused: The accused maintains his plea of guilty.

**Court:** Are the brief facts correct?

**Accused:** Yes, it is true. I committed the offence.

**Court:** The accused is convicted on his own plea of guilt."

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In Adan V Republic (supra) cited by Counsel for the Appellant, the procedure for recording a plea of guilty was laid down as follows;-

"The charge and all the essential ingredients of the offence should be explained to the accused in his language or in a language he understands. The accused' own words should be recorded and if they are an admission, a plea of guilty should be recorded. The prosecution should then immediately state the facts and the accused should be given an opportunity to dispute or explain the facts and the accused should be given an opportunity to add any relevant facts. If the accused does not agree with the facts or raises any question of his guilt in

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reply, it must be recorded and a change of plea entered and the trial should proceed. If there is no change of plea, a conviction should be recorded and a statement of facts relevant to sentence together with the accused's reply should be recorded."

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The appellant's complaint is that the ingredients of the offence were not explained to him which assertion is not supported by the record of the trial court. In replying to whether the brief facts read out by the Prosecutor were correct, the appellant went into a lengthy narrative of what transpired though not denying the commission of the offence. See page 10 of the record).

The trial Judge then guided and explained the ingredients of the offence to the appellant upon which his Counsel sought an adjournment to confer with him. On resumption of the proceedings, the appellant maintained his guilty plea upon which he was convicted. It is thus erroneous to argue that the ingredients of the offence were not explained to the appellant.

The trial Judge followed the correct procedure in taking the guilty plea from the appellant and whatever the case, any omission should have been $25$ raised by his counsel during the proceedings if at all there had been a failure of justice. Section 138 (1) and (2) of the Trial on Indictments Act [CAP 25] provides as follows;-

# "138. Reversability or alteration of finding, sentence or order by reason of error, etc.

(1)Subject to the provisions of any written law, no finding, sentence or order passed by the High Court shall be reversed or altered on appeal on account of any error, omission, irregularity or misdirection in the summons, warrant, indictment, order, judgment or other


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proceedings before or during the trial unless the error, omission, irregularity or misdirection has, in fact, occasioned a failure of justice.

(2)In determining whether any error, omission, irregularity or misdirection has occasioned a failure of justice, the court shall have regard to the question whether the objection could and should have been raised at an earlier stage in the proceedings."

We thus dismiss this ground of appeal for want of merit. 15

## **Ground of Appeal No.2**

The second ground of appeal faults the trial judge for imposing a harsh and excessive sentence of 30 years' imprisonment.

Counsel for the parties correctly submitted that this court will only 20 interfere with a sentence imposed by the trial court when it is illegal, was founded on a wrong principle or where the court ignored material factors in the case. The court can also interfere with the sentence where it is harsh or excessive. See. Kiwalabye Bernard v Uganda, SCCA No.143 of 2001; Livingstone Kakooza v Uganda [1994] UGSC 17. $25$

The principle that is observed by the courts where a sentence is stated to be harsh and excessive in the circumstances of the case was stated in Aharikundira Yustina v Uganda [2008] UGSC 49 as follows;

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"There is a high threshold to be met for an appellate court to intervene with the sentence handed down by a trial Judge on grounds of it being manifestly excessive. Sentencing is not a mechanical process but a matter of judicial discretion therefore perfect uniformity is hardly possible. The key word is "manifestly excessive". An appellate court will only

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exceeds the intervene where the sentence imposed permissible range or sentence variation."

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The Constitution (Sentencing Guidelines for Courts of Judicature) (Practice) Directions, 2013 in part 1 of the 3^rd schedule provide for a starting point of 35 years and a sentencing range of 30 years up to death when determining sentences in murder cases. The sentence of 30 years' imprisonment was therefore within the permissible range.

We are further guided by paragraph 6(c) of the Constitution (Sentencing Guidelines for the Courts of Judicature) (Practice Directions),2013. 15 Courts are required to take into account the need for consistency with appropriate sentencing levels and other means of dealing with offenders in respect of similar offences committed in similar circumstances.

In Latif Buulo v Uganda [2019] UGSC 68, the Supreme Court upheld a sentence of 25 years' imprisonment imposed by the Court for murder. $20$ Similarly, in Aharikundira v Uganda [2018] UGSC 49 the Court set aside the death sentence and imposed a 30 years' imprisonment sentence in a murder case.

This Court in Twinomugisha Andrew v Uganda [2024] UGCA imposed a $25$ sentence of 35 years after setting aside the death sentence imposed by the trial court for murder. The appellant murdered a minor like in the instant appeal. In Okiru Isiah alias Opolot v Uganda, [2023] UGCA 333 this court upheld a sentence of 36 years against the appellant who was found guilty of murdering his son and throwing the body in a river. $30$

All aggravating and mitigating factors considered, we find that the 30 years' imprisonment imposed by the trial Judge was neither harsh nor excessive given the circumstances in which the offence was committed. This ground of appeal is dismissed for want of merit.

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CNU

In the result, the appeal fails and it is dismissed, the appellant should $\mathsf{S}$ continue serving his sentence.

Signed, dated and delivered at Mbarara this........ day of May 2025.

**Moses Kazibwe Kawumi Justice of Appeal**

**Florence Nakachwa Justice of Appeal**

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Cornelia Kakooza Sabiiti **Justice of Appeal**

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