[2021] UGSC 54

### THE REPUBLIC OF UGANDA

# IN THE SUPREME COURT OF UGANDA AT KAMPALA

Coram: Arach-Amoko, Opio-Aweri, Tibatemwa-Ekirikubinza, Muhanguzi, Chibita, **JJSC**

## **CRIMINAL APPEAL NO. 65 OF 2016**

# **SEGAWA JOSEPH....................................**

### **VERSUS**

UGANDA................................... **.....................................**

(Appeal against sentence of the Court of Appeal Uganda in Criminal Appeal No. 68 of 2012 before; Kiryabwire, Mugamba, Bamugemereire, JJA dated 15^th December 10 $2016)$

### JUDGMENT OF THE COURT

This is a second appeal. The appellant herein appealed to this court against the court of appeal sentence of 20 years imprisonment for the

offence of murder contrary to sections 188 and 189 of the Penal Code 15 Act.

### **Brief background.**

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The appellant was indicted for and convicted of the offence of murder contrary to sections 188 and 189 of the Penal Code Act. He was sentenced to 45 years imprisonment by the High Court. On appeal, the 20 Court of Appeal substituted the sentence with one of imprisonment for 20 years. Dissatisfied with the decision of the Court of Appeal, the appellant appealed to this Court against sentence alone.

The appeal is based on one ground as follows: -

# "The learned justices of appeal erred in law when they illegally sentenced the appellant to 20 years imprisonment which is in total disregard of the period spent on remand."

The appellant prayed this Court to allow the appeal and reduce the sentence of 20 years imprisonment.

#### Representation. 30

At the hearing of the appeal, learned counsel, Mr. Albert Mooli Sibuta represented the appellant while Mr. Badru Mulindwa, learned Senior Assistant Director of Public Prosecutions represented the respondent. The appellant was in court by video conferencing at Luzira Upper Prison.

Both counsel filed written submissions which they adopted at the 35 hearing.

### Submissions for the appellant.

It was submitted for the appellant that on appeal, the learned Justices of the Court of Appeal while sentencing the appellant, failed to take into account the period the appellant had spent on remand.

Counsel pointed out that the appellant had spent about 2 years on remand which ought to have been considered by the Court of Appeal while imposing the sentence of 20 years imprisonment to the appellant. In support of this argument, counsel cited Tukamuhebwa David Junior

- & Anor Vs. Uganda, Supreme Court Criminal Appeal No. 59 of 2016, 45 where this Court deducted a period of 3 years and 7 months, the appellant had spent on remand from a sentence of 20 years imprisonment and 10 years imprisonment for the offences of Aggravated robbery and rape respectively. - He asked court to allow the appeal, set aside the sentence and substitute 50 it with a legal one.

## Submissions for the respondent.

The respondent opposed the appeal and contended that the learned Justices of the Court of Appeal took into account all mitigating factors which among others included the period spent on remand by the 55 appellant. He submitted that the period on remand need not be deducted arithmetically from the sentence imposed. Counsel cited Abelle Asuman Vs. Uganda, Supreme Court Criminal Appeal No. 66 of 2016.

- He argued that the first appellate court mentioned that they had taken 60 into account all aggravating and mitigating factors before imposing the sentence. Counsel added that the sentence of 20 years imprisonment is legal given that the maximum sentence of the offence of murder is death. - Further, counsel submitted that this court can only interfere with the 65 sentence if it is evident that the Judge acted upon some wrong principle or overlooked some material factor or if the sentence is manifestly excessive in view of the circumstances. In support of this argument counsel cited Ogalo s/o Owoura Vs. R, (1954) 21 EACA 126. - Counsel asked Court to dismiss the appeal and uphold the 20 years 70 imprisonment.

### Consideration by court

In resolving the issue raised in this appeal, this court is mindful of its duty as a second appellate court to decide whether the first appellate court failed in its duty to re-evaluate the evidence presented before the trial 75 court to reach its own conclusion. See: Pandya Vs. R, (1957) EA 336 and Kifamunte Henry Vs. Uganda, Supreme Court Criminal Appeal No. 10 of 1997.

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The appellant's complaint in this appeal is that the sentence meted out to him was illegal due to the fact that the Court of Appeal Justices failed to take into account the period he had spent on remand. In his memorandum to the Court of Appeal, the appellant had stated that the learned trial Judge erred in law and fact when she sentenced the appellant to 45 years imprisonment which is deemed to be manifestly harsh and excessive on account of the obtaining circumstances.

In sentencing the appellant, the trial Judge had stated at page 16 of the record of proceedings in the High Court as follows: -

"The convict is a first offender, who has been in prison for 2 years without trial. This offence he has been convicted of is rampant in this area. He committed the offence in a very cruel manner. The maximum sentence for this offence is death. Taking all the above into account, he is sentenced to 45 years imprisonment."

Basing on the above mentioned ground, the learned Justices of the Court of Appeal held at page 5 of the Judgment of the Court of Appeal as follows: -

"We have, on our own, having re-considered both the mitigating and aggravating factors and considering all the circumstances of the case, concluded that a sentence of 45 years imprisonment was harsh and manifestly excessive. We accordingly set it aside. We substitute the same with a sentence of 20 (twenty) years from the date of conviction."

In his memorandum of appeal to this Court, the appellant stated that the learned Justices of the Court of Appeal erred in law when they illegally sentenced the appellant to 20 years. In his submissions, counsel for the appellant argued that the illegality of the sentence was due to failure by the Court of Appeal to consider the remand period in arriving at the sentence it imposed on the appellant.

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We note that the issue of the remand period not being considered was not a ground of appeal at the Court of Appeal. What was challenged was the harshness of the sentence.

The Court of Appeal thus cannot be faulted for having not considered an 110 issue that was not a ground of appeal in that court. Rule 102 of the Court of Appeal Rules provides: -

### "102. Arguments at hearing.

At the hearing of an appeal in the court—

- (a) no party shall, without the leave of the court, argue that the decision of 115 the High Court should be reversed or varied except on a ground specified in the memorandum of appeal or in a notice of cross-appeal, or support the decision of the High Court on any ground not relied on by that court or specified in a notice given under rule 93 of these Rules;" - We note that the illegality of sentence is being raised for the first time. 120 In Criminal Appeal No. 25 of 2014, Rwabugande Moses Vs. Uganda, this court noted that an appellate court will not consider an argument raised for the first time on appeal pursuant to rule 70(1) of the Supreme Court Rules. In that case, nevertheless, court proceeded to address the issue - of illegality of sentence because a court of law cannot sanction what is 125 illegal.

Like in this case, the appellant contends that 20 years imprisonment meted out to him was illegal due to the fact that the Court of Appeal did not consider the period he had spent on remand. This situation falls within the exception to rule $70(1)$ of this Court's rules which provides as

130 follows: -

### 70. Arguments at hearing.

(1) At the hearing of an appeal—

## (a) the appellant shall not, without leave of the court, argue any ground of appeal not specified in the memorandum of appeal or in any supplementary memorandum lodged under rule 63 of these Rules;

This issue deals with a constitutional right of fair hearing as guaranteed by Article 23(8) of the Constitution being denied. We will therefore proceed to address this issue of failure by the Court of Appeal to consider the remand period even though it was not raised on first appeal.

On sentence, the principles upon which an 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. A court will not ordinarily interfere with the discretion exercised by a learned trial Judge unless it is evident that the trial Judge acted upon some wrong principle or over looked some material factor or the sentence is manifestly excessive or lenient, in view of the circumstances of the case. See: Livingstone Kakooza V Uganda,

Supreme Court Criminal Appeal No. 17 of 1993, Kyalimpa Edward V. 150 Uganda, Supreme Court Criminal Appeal No. 10 of 1995 and Kiwalabye Bernard V Uganda, Supreme Court Criminal Appeal No. 143 of 2001.

The respondent argues that the fact that the Justices of the Court of Appeal stated that they had taken into account all mitigating and aggravating factors, meant that they had also considered the period the 155 appellant had spent on remand.

This Court in **Rwabugande Moses v Uganda**, (supra), which judgment was delivered on 3^rd March 2017, explained what taking into account as provided under Article 23 (8) of the Constitution entails. It stated thus: -

"It is our view that the taking into account of the period spent on remand by a court is necessarily arithmetical. This is because the period is known

with certainty and precision; consideration of the remand period should therefore necessarily mean reducing or subtracting that period from the final sentence. That period spent in lawful custody prior to the trial must be specifically credited to an accused."

On the other hand, this court in Abelle Asuman Vs. Uganda, Criminal Appeal No.66 of 2016, which judgment was delivered on 19^th April 2018 was of the view that taking into account period spent on remand by court does not mean an arithmetical exercise.

- In the most recent case of Nashimolo Paul Kibolo Vs. Uganda, Supreme 170 Court Criminal Appeal No. 46 of 2017, which judgment was delivered on 9^th September 2020, this court labored to reconcile the positions in the cases of Rwabugande Moses Vs. Uganda, (supra) and Abelle Asuman Vs. Uganda, (supra). It stated: - - "The case of Abelle Asuman Vs. Uganda, supra which the learned Senior 175 State Attorney relied on was delivered on 19^th April 2018 a year after the decision in the case of Rwabugande. This court was therefore, bound by its previous decision. The principle of horizontal precedent, which means, that a court is bound by its own decisions in the absence of exceptional reasons to warrant the departure from its decision applies. 180

Article 132(4) of the Constitution clearly stipulates the circumstances under which this court can depart from its previous decisions. Indeed, this court invoked that power in the case of Rwabugande. This court took cognizance of its previous decisions and also gave reasons for the departure from that position.

It is therefore unlikely that the court would outlaw its previous position in the case of Kizito Senkula vs. Uganda, (supra), Bukenya Joseph vs. Uganda, (supra) among others and give justification for the departure and then unceremoniously reinstate it a year later.

In Abelle Asuman case, the court quoted the outlawed position, it was 190 *followed by an unequivocal statement that:*

"In its judgment this court made it clear that it was departed from its earlier decision in Kizito Senkula vs. Uganda SCCA No. 24/2001; Kabuye Senvano vs. Uganda, SCCA No. 2 of 2002; Katende Vs. Ahamed Vs. Uganda, SCCA No. 6 of 2004 and Bukenya Joseph vs. Uganda, SCCA No. 17 of 2010 which held that "taking into consideration of the time spent on remand" does not necessitate a sentencing court to apply a mathematical formula.

This court and the courts below before the decision in Rwabugande (supra) were following the law as it was in the previous decisions above quoted since that was the law then.

After the court's decision in the Rwabugande case this court and the court's below have to follow the position of the law as stated in Rwabugande(supra). This is I accordance with the principle of precedent." (emphasis theirs)

This in our view, brought clarity on the prevailing position of the law as contained in the case of Rwabugande Moses vs. Uganda (supra)

The decision in Abelle Asuman vs. Uganda(supra) was made per incurium to the extent that it made reference to an outlawed position."

This court is bound to follow its earlier decisions for the purpose of maintaining the principle of *stare decisis*. This court has the duty to 210 decide which decision is to be followed. Our appreciation of Article 23(8) of the Constitution is that the consideration by Court of the period spent on remand by a convict is mandatory. A sentencing Judge is under a duty to consider the exact period spent on remand in upholding the provisions

- of the supreme law of the land. For avoidance of imposing ambiguous 215 sentences, we hold that the period spent on remand must be arithmetically deducted. This renders justice to a convict. We therefore find that the **Rwabugande** case is the correct position of the law in matters where the appellant challenges the legality of sentence in - relation to whether or not court rightly considered the provisions of 220 Article 23 (8) of the Constitution.

As already noted above, the record shows that the trial court took into account the remand period of 2 years when arriving at the sentence of 45 years imprisonment. However, the Court of Appeal did not, while imposing the sentence of 20 years imprisonment. Article 23 (8) of the Constitution provides: -

"23. Protection of personal liberty.

(8) Where a person is convicted and sentenced to a term of imprisonment for an offence, any period he or she spends in lawful custody in respect of the offence before the completion of his or her trial shall be taken into account in imposing the term of imprisonment."

It is well settled that a sentence arrived at without taking into consideration of the period spent on remand is illegal for failure to comply with a mandatory constitutional provision. See: Rwabugande

Moses Vs. Uganda, supra. 235

> We therefore find and hold that while imposing on the appellant a sentence of 20 years imprisonment, the Court of Appeal failed to consider the period of 2 years the appellant had spent on remand. That sentence, in our view, is thus illegal and we therefore set it aside.

We now invoke section 7 of the Judicature Act, which gives this Court the 240 same powers as the trial court to impose a sentence we think would be appropriate in the circumstances of this case.

In arriving at an appropriate sentence, we consider all the aggravating and mitigating factors. It was submitted in allocutus that the deceased was deprived of her life and she was survived by a child of two and a half 245 years. The state prayed for a deterrent sentence because the offence of murder was rampant. On the other hand, it was submitted for the appellant that he is a first offender. He had spent 2 years on remand and that he was remorseful. He prayed for a lenient sentence.

- In consideration of the above factors and bearing in mind the fact that 250 the maximum sentence for the offence of murder is death penalty, we come to the conclusion that a sentence of 22 years imprisonment would be appropriate in the circumstances of this case. However, in line with the provisions of Article 23(8) of the Constitution and the authority of - Rwabugande Moses Vs. Uganda, (supra), we deduct the two years he 255 spent on remand so that the appellant shall serve a sentence of 20 years imprisonment from 16/3/2012, the date of his conviction.

day of $0$ $0$ $0$ $0$ $0$ $0$ $1$ . Dated at Kampala this .........

Stella Arach-Amoko JUSTICE OF THE SUPREME COURT

Rubby Opio-Aweri JUSTICE OF THE SUPREME COURT

*Eusatemerg.* 270

Prof. Lillian Tibatemwa-Ekirikubinza JUSTICE OF THE SUPREME COURT

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**Ezekiel Muhanguzi** JUSTICE OF THE SUPREME COURT

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Mike Chibita JUSTICE OF THE SUPREME COURT