[2024] UGCA 196

## THE REPUBLIC OF UGANDA

## IN THE COURT OF APPEAL OF UGANDA HOLDEN AT MASAKA

(Coram: Hellen Obura, Muzamiru M. Kbeedi & Moses K. Kazibwe, JJA)

#### CRIMINAL APPEAL NO. 101 OF 2017

# 1, RWABUKOMAGEOFFREY

2. RWAKASHENYT ONESMAS) APPELLANTS

# 3. KAKURU MOSES

### VERSUS

UGANDA RESPONDENT

(Appeal from the decision of the High Courl (Dr. Flavian Zeia, J (as he then was) delivered on the 2?d day of March,2017 at Masaka in HCT-CR- SC-No. 071/2013 at Kampala).

#### SENTENCING RULING

On '17th July 2024 this Court delivered the ludgment in this appeal where the appellants' convictions were upheld. When counsel who were holding brief for counsel in personal conduct were given opportunity to address us on the aggravating and mitigating factors for purposes of determining the appropriate sentences, they each said they were not ready. We therefore gave them direction for filing written submissions on the aggravating and mitigating factors and adjourned the matter to 30th July 2024 for sentencing ruling.

As we did state in the judgment, this is a sad case where the sentencing proceedings and ruling were missing from the record of the lower court. Efforts to trace them were reported to be futile. We weighed the option of refening this matter back to the trial court for sentencing purposes only but we realised that more injustice would be done as it would fu(her infringe on the appellants' rights to a speedy hearing. We the opted to invoke section 1'1 of the refore

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Judicature Act, Cap. 13, now Cap. 16 of 7tn Revised Edition of Principal Laws of Uganda which empowers this Court to exercise the power of the trial court and impose an appropriate sentence upon considering both the aggravating and mitigating factors as well as the pre-trial period the appellants spent on remand.

ln their written submissions on the aggravating factors, it was submitted for the respondent that, as correctly found by the trial Judge in his judgment at page 64 of the record, the appellants mobilised themselves and attacked the deceased and other persons in an act of revenge following the alleged beating of one Kato lsaac, a brother to the appellants at 9.00 am that fateful day. Counsel contended that the appellants executed the revenge with precision around 3:00 pm on that day and that it was a well-planned, premeditated and meticulously prepared incident. Further, that none of the appellants claimed that he was beaten by the deceased but the appellants took the law into their own hands when they attacked the deceased and used bruteforceto kill him afterfracturing his skull. He urged this Court to take a very serious view of this offence and the extremely violent manner in which it was committed.

Counsel cited the case of Rnabugande Moses vs. Uganda, Supreme Court Criminal Appeal No.25 of 2014, where there was a scuffle between the appellant and his herdsman on lhe one hand and the deceased on the other hand over an impounded herd of cattle. The appellant had been convicted of murder and sentenced to 35 years' imprisonment. He appealed to this Court which upheld the conviction and sentence, but on a 2no appeal to the Supreme Court, the sentence was reduced to 21 years' imprisonment.

While praying for a more serious sentence against the appellants, counsel argued that the facts of this case are more grave than those in the case of Rwabugande (supra).

Conversely, it was submitted for the appellants that in the absence of the pre-sentencing proceedings, it is inconceivable how this Court can arrive at the ost appropriate sentence


which is an opportunity availed to the trial court in full view of all the evidence adduced before it. Counsel argued that when this Court assumes the role of the trial court to sentence the appellants it would be prejudicial to them as in the same vein it would be adjudicating over the entire matter (appeal) as the first appellate court. We must observe that we have not properly comprehended what this argument that contradicts the earlier submission is intended to achieve. To us lt is clearly self-defeating. Counsel cannot allude to the duty of this Court as a first appellate court to re-appraise all the evidence before the trial court and come to its own conclusion and yet at the same time contend that this Court cannot anive at the most appropriate sentence which is an opportunity availed to the trial court in full view of all the evidence adduced before it. We have all the evidence that was before the trial court and we are very much capable of reviewing the same in addition to the aggravating and mitigating factors lhat have been presented to us for purposes of determining the appropriate sentence for the appellants.

Counsel also dwelt so much on the alleged innocence of the appellants and invited this Court to revisit the evidence of PW1 as though he was arguing an appeal against our decision upholding the conviction of the appellants. ln that regard, counsel urged this Court to consider that the exact role by each of the appellants in the alleged offence was very much in issue. According to counsel, the appellants tried very hard to assist the police to quell the situation.

What we find relevant in the submission for purposes of sentencing is the argument that the evidence adduced by the prosecution indicated that the fight that led to the death of the deceased was purely an act of mob justice involving the two families. They urged this Court to so find and consider the decision in Kamya Abdullah and 4 others vs Uganda, Supreme Court Criminal Appeal No. 0024 of 2015 in that regard.

Counsel also disagreed with the submission of the respondent that the incident was a wellplanned, premeditated and meticulously prepared inci ntending that there was no

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evrdence to prove it. ln conclusion, they invited this Court to consider the following mitigating factors: -

- 1. Thal the appellants are all first lime offenders who had spent 4 months and ¹⁸ days on remand before their release on bail, - 2. They never jumped/absconded bail till their conviction on 22nt March 2017, - 3. They all have family responsibilities, namelyi the 1st appellant has 2 wives (including a crippled one), 10 children, 8 dependants of deceased brothers; the 2no appellant has a wife and a child; the 3d appellant has 2 wives and 9 children.

Based on the above factors, counsel prayed for a very lenient sentence for each of the appellants.

We must first of all make it clear that this Court is clothed with the same power as the trial court under section 11 of the Judicature Act previously Cap. 13, now Cap. 16 of the 7tn Revised Edition of Principal Laws of Uganda. lt provides thus: -

### "11. Courl of Appeal to have powers of the coutt of original jurisdiction

For the purpose of hearing and determining an appeal, the CourT of Appeal shall have all the powe|s, authotity and jurtsdiction vested under any written law in the coutt frcm the exercise of the original jurisdiction of which the appeal originally enanated.'lEmphasis ours].

We therefore find no merit in the argument for the respondents that when this Court assumes the role of the trial court to sentence the appellants it would be prejudicial to them as in the same vein it would be adjudicating over the entire matter (appeal) as the first appellate court.

We accept the submission that the fight between the two families that led to the unfortunate death of the deceased were acts of mob justice following the earlier assault of one of the appellants' brothers that morning. Counsel for the appellants themselves conceded this when they submitted on ground 3 of the appea I that the record clearly revealed that there was

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provocation on the deceased's side, having earlier beaten the appellants' brother and broken his leg and the appellants retaliated by using canes and not pangas which according to them was reasonable force and could not impute malice aforethought on the appellants. So it clear that the appellants' family took the law into their hands by way of revenge in acts of mob justice that resulted into death.

ln the circumstances, in determining the appropriate sentences for the appellants, we shall be guided by the Supreme Court decision in Kamya Abdullah and 4 others vs Uganda (supra), where it was held that convicts in cases involving mob justice cannot be put in the same sentencing plane as other convicts of murder. The Court observed that:

"... Counsel for the appellants m hls submisslons stated that many of those who take paft in nob justice do so without thinking. They do so because others are dorng so. We agree, fuihermore, a mob in its peNerted sense ofjustlce lhinks it is administering justice while at the same time ignoring the impoiance of affording the suspects the ights to defend themselves in a formal ttial.

Without downplaying the seriousness of offences committed by a mob by way of enforcing their misguided form of justice, a wrong practice in our communities which admittedly must be discouraged, we cannot ignore the fact that, in terms of sheer criminality, such people cannot be and should not be put on the same plane in sentencing as those who plan their crimes and execute them in cold blood."

ln Kamya Abdullah and 4 others vs Uganda (Supra) the deceased was killed by a mob and the appellants were sentenced to 40 years' imprisonment. On appeal, this Court substituted the sentence of 40 years' imprisonment with 30 years' imprisonment. On a second appeal, the Supreme Court reduced the sentence to 18 years' imprisonment.

substituted with 14 1/z years' imprisonment each Also in Afukwasa Jonan and 6 ors vs Uganda, Court of Appeal Criminal Appeal No. 168 of 2018, the appellants were part of a mob that committed murder. They were tried, convicted and sentenced to 25 years' imprisonment. On appeal to this Court, their sentences were

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Taking into consideration both the mitigating and aggravating factors highlighted above and the above sentences previously imposed by this Court and the Supreme Court in cases of a similar nature, while bearing in mind that this was a case of mob justice, we find that the sentences of 18 years will meet the ends of justice. We note that the appellants have been on bail throughout the period they were on trial and after their conviction they also got bail pending appeal. The total period they were in custody was 4 months and 18 days. Under Article 23 (8) of the Constitution we are enjoined to take into account that period of 4 months and 18 days as we sentence the appellants. Accordingly, we deduct that period from the 18 years and sentence each of the appellants to 1 7 years, 7 months and 1 2 days' imprisonment to be served from the date of conviction, which is 22nd March,2017 . We so order.

Dated at Kampala this 30th day of July 2024'

Hellen Obura JUSTICE OF APPEAL -,;?4 Z9 1,:)

Muzamiru M. Kibeedi

JUSTICE OF APPEAL

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Moses K. Kazibwe

JUSTICE OF APPEAL