[2024] UGCA 260

#### THE REPUBLIC OF UGANDA

# IN THE COURT OF APPEAL OF UGANDA HOLDEN AT **MBARARA**

(Coram: Eva K. Luswata, JA, Oscar Kihika, JA, Dr. Asa Mugenyi, JA)

#### CRIMINAL APPEAL NO. 258 OF 2014

#### **BETWEEN**

#### SHIDACHERA EZEKIUS::::::::::::::::::::::::::::::::::::

#### **AND**

#### UGANDA:::::::::::::::::::::::::::::::::::

# (An appeal from the Judgement of the High court sitting at Mbarara in Criminal Session Case No.205 of 2012 by Hon. Justice Bashaija K. Andrew delivered on 30^th October, $2012$ )

#### 20

#### JUDGEMENT OF THE COURT

#### **Introduction**

The Appellant was charged with murder contrary to **section** $1\mathbf{1}$ 188 and 189 of the Penal Code Act Cap128. On the 30^th day of October, 2012, he was convicted and sentenced to 20 years' imprisonment. The particulars of the offence are that the Appellant on the 11^th day of April, 2012 at Kakingi "A" cell, Nakivale Refugee Settlement Camp in Isingiro District, murdered Nyiranaribori Ngarabizaka.

### **Representation**

At the hearing on $2^{nd}$ September 2024, the Appellant was $21$ 30 represented by Mr. Emmanuel Tumwebaze, while the Respondent was represented by Mr. Simon Peter Semalemba an Assistant Director of Public Prosecutions. The Court adopts their respective submissions and will in addition consider authorities in the determination of this appeal. 35

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#### **Background** $\mathsf{S}$

The brief facts as discerned from the record are that on the 11^th $3$ day of April 2012, at around 11:00 pm within Nakivale Refuge Settlement camp in Isingiro District, the Appellant went to the home of Nyiranaribori Ngarabizaka (the deceased) and attacked her. She made an alarm which attracted neighbours who on arrival at the scene, disarmed the Appellant of the heavy stick he was using to assault her, and arrested him. The stick was taken into police custody and the deceased was taken to Juru Health Centre where she passed on the following day. Before her demise, Ngarabizaka disclosed that the Appellant had assaulted her because she denied him entry into her home for the night.

$4$ The Appellant admitted the offence and entered a plea of guilty. He has preferred an appeal against his sentence on the following grounds:

- The learned trial Judge erred in law and fact when he i. sentenced the Appellant to a harsh and excessive sentence thereby occasioning a miscarriage of justice to *the Appellant.* - *The learned trial Judge erred in law when he sentenced* ii. the Appellant without taking into account the time, he *spent on remand thereby occasioning a miscarriage of* justice.

### **SUBMISSIONS OF PARTIES**

#### **Appellants' Submissions** 30

$5$ On ground one, Mr. Tumwebaze counsel for the Appellant submitted that it is settled law that the appellate court cannot interfere with the sentencing discretion of the trial court unless it is satisfied that the sentence imposed was manifestly excessive, or so low as to amount to a miscarriage of justice or where the trial court ignores to consider important matters or circumstances which ought to be considered when passing sentence, or where sentence imposed is wrong in principle. He relied on Kiwalabye Bernard vs Uganda, SC Criminal Appeal

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$\mathsf{S}$ No. 143 of 2001 which was cited with approval in **Semanda** Christopher and Another vs Uganda, CA Criminal Appeal No. 77 of 2010.

- Counsel contends in particular that the sentence in this appeal $6$ was manifestly excessive and inconsistent with other cases where Appellants were charged and convicted of a similar 10 offence yet there is a need to maintain consistency while sentencing. He referred for example to the Supreme Court decision in Mbuya Godfrey vs Uganda, Criminal Appeal No. 4 of 2011. Appellant's counsel also cited John Kasimbazi & Others vs Uganda, CA Criminal Appeal No. 167of 2013, 15 where the Appellant was charged with murder and sentenced to life imprisonment and on appeal to this court, the sentence was reduced to 12 years' imprisonment. That the Court ought to have considered the plea of guilty and imposed a less severe sentence. 20 - $7]$ Counsel prayed for the sentence to be reduced and consistency in sentencing applied. He suggested a term of 15 years' imprisonment. - On ground two, the Appellant's counsel submitted that **Article** $8$ **28(3)** of the Constitution of Uganda as amended, provides that 25 in convicting and sentencing an accused person to a term of imprisonment, courts are obliged to take into account the period spent on remand. He cited Kwamusi Jacob vs Uganda **CA Criminal Appeal No. 203 of 2009,** where it was held that failure to comply with the requirement of taking into account 30 any period spent on remand, renders the imposed sentence a nullity. He in addition cited the decision of **Rwabugamde vs** Uganda [2017] UGSC (3 March 2017), where it was held that taking into account of the period spent on remand by a Court, is necessarily arithmetical and thereby, consideration of the 35 should necessarily mean period reducing remand $or$ subtracting that period from the final sentence. That the period spent in lawful custody prior to the trial must be specifically credited to an accused.

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- $9]$ Counsel for the Appellant further submitted that the trial Judge $\mathsf{S}$ simply stated at page 7 of the record that he had taken all factors into consideration before pronouncing the sentence of 20 years' imprisonment. That such an order did not take into account the period of 6 months and 12 days which was not deducted from the final sentence by the trial Judge, which was 10 an error in law. - $10$ Counsel filed a rejoinder to emphasize his earlier submissions then prayed that the sentence of 20 years' imprisonment be set aside as being illegal, and further, that the remand period be deducted from the sentence that he suggested as the most appropriate in the circumstances.

### **Respondent's Submissions**

- Mr. Semalemba the Respondent's counsel, agreed with the $[11]$ position of the law on when the Court can interfere with a 20 sentence passed by the trial Judge. He cited Livingstone Kakoza vs Uganda SC Criminal Appeal No. 17 of 199 wherein this Court and the Supreme Court decided that an appellate court should alter the trial Court's sentence only if the trial court acted upon a wrong principle, when it overlooked some 25 material fact or, when the sentence was found to be manifestly excessive. - With respect to the first ground, counsel maintained that in $12]$ passing the sentence, the trial Judge considered both the mitigating and aggravating factors and that the sentence did 30 not occasion a miscarriage of justice. He defined the term "miscarriage of justice" as failure of justice or a grossly unfair outcome in a judicial proceeding, for example, when an accused person is convicted despite lack of evidence on an essential element of the crime. In his view, although the Appellant alluded to what amounts to a harsh and excessive sentence, the sentence handed down in this case could not be termed as such, especially when the trial Judge adhered to the Sentencing Guidelines. That the maximum sentence prescribed under the

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⁵ law for murder is death and therefore, a20 year sentence would infact be too lenient.

- 10 131 Counsel then provided a few cases to demonstrate the principle of consistency. He cited for example, Jagenda John vs Uganda' Criminal Appeal No. 1 of 2011 which was delivered on 11th February 2022. In that case, a sentence of 35 years' imprisonment was set aside and substituted with a sentence of 3O years from which 3 years spent on remand were deducted. Counsel further relied on Ssentumba Frank and Others vs Uganda, Criminal Appeal No. 467 of 2O2O, whose judgement was delivered on 26th September 2023, where this Court upheld a sentence of 25 years and only deducted the period spent on remand and sentenced each Appellant to 23 years and ⁵ months' imprisonment. Counsel also relied on Florence Abbo vs Uganda, Criminal Appeal No. 168 of 2013, where this Court on the 18th of January 2023, declined to interfere with a prison sentence of 20 years. 20 - 141 Mr. Semalemba then prayed the Court to dismiss ground one for being void of merit. - 151 In response to ground 2, Mr. Semalemba submitted that the record of appeal is clear, that the Judge took into account all factors and the circumstances of the case before sentencing the Appellant to 20 years' imprisonment. That implied that the period spent on remand was also considered. He cited this court's decision of Ssentumba Frank vs Uganda (supra), where the Court deducted the period spent on remand. - 161 Counsel concluded by praying that this Court declines to interfere with sentence that was imposed.

## Determination by Court

l7l We are sitting as a first appellate court and our duty is cut out by the law. We are mandated to re appraise the evidence and draw inferences of fact before coming to our own conclusions. We must leave allowance for the fact that the trial Judge who conducted the trial, had first-hand interaction with all the persons at the trial and the evidence they related. See: Rule

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30(1)(a) of the Rules of this Court. In Diana Luutu Nabbengo vs Uganda, CA Criminal Appeal No. 128 of 2020 which followed Kifamunte Henry vs Uganda, SC Criminal Appeal No. 10 of 1997 and Dinkerral Ramkrishan Pandya vs R (1957) EA 336 it held that:

> "The first appellant court has duty to re evaluate the" *evidence and reappraise all the evidence brought before it and to draw its own findings, interferences* and conclusions of the fact and law. In exercising this *duty, the court must be conscious that it did not have* the opportunity to observe the deamnor of the accused and to that extent, the Court must be guided by the observations made by the trial Court".

The Appellant contests the sentence on two fronts: $18]$

i) That it was manifestly harsh and excessive

ii) That it was illegal.

The principles guiding the appellate Court when considering any contest to a sentence are well settled. Our powers to intervene are quite limited. We may interfere only in cases where it is shown that:

- a. The sentence is illegal - b. The sentence is manifestly harsh or excessive or is manifestly too law - c. Where there has been failure to exercise discretion - d. Where there was failure to take into account a material factor - e. Where an error in principle is made.

See Ogalo S/O Owoura vs R (1954)21 E. A. CA. 270, Kyalimpa Edward vs Uganda, SC Criminal Appeal No. 10 of 1995, Kamya Johnson Wavamuno vs Uganda, SC Criminal Appeal No. 16 of 2000 and Kiwalabye vs Uganda, SC Criminal Appeal No. 143 of 2001.

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- Since ground two raises an issue of the legality of sentence, we $\mathsf{S}$ $191$ shall address it first. Should we decide that it has merit, then the appeal would have been resolved. - It is contended that the Court did not consider the period that $20$ the Appellant had spent on remand before his conviction. As pointed out by Appellant's counsel, the requirement to consider the remand period is a dictate of the Constitution in Article $23(8)$ which provides as follows:

"*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 completion of his or her trial shall be taken into account while imposing the term of imprisonment.*"

The Appellant was convicted and sentenced on $30/10/2012$ $21$ and thus, the Judge was expected to follow what was the pertaining sentencing regime before the Supreme Court decision of Rwabugande Moses vs Uganda, (supra). A sentencing Judicial Officer need not have made an arithmetic calculation of what was to be deducted, but at least, to demonstrate that they appreciated and had taken into account the period spent on remand. All that was required of a 25 sentencing Judicial Officer was to show in their ruling that they had given attention to the period of remand and considered it as a factor in deciding on an appropriate sentence suiting the circumstances of the case. The Supreme Court took time to explain this in now well followed decision in Kizito Senkula vs 30 Uganda Criminal Appeal No. 24 of 2001, decided on $19/12/2002$ . It was held in part that:

> "As we understand the provisions of article 23(8) of the Constitution, they mean that when a trial court imposes a term of imprisonment as sentence on a convicted person, the court should take into account the period which the person, spent in remand prior to his/her conviction. Taking into account does not mean an arithmetical exercise. Further, the term of

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*imprisonment should commence from the date of* conviction"

The Supreme Court handed down similar decisions in other cases like that of Kabuye Senvewo vs Uganda, SC Criminal Appeal No. 2 of 2002, Katende Ahamed vs Uganda, SC Criminal Appeal No. 6 of 2004 and Bukenya Joseph vs Uganda, SC Criminal Appeal No. 17 of 2010.

To better understand whether the Judge followed the law, it is $22|$ necessary to reproduce the proceedings leading to the sentence. We therefore reproduce the allocution proceedings.

> State Attorney: The convict is first offender. There is no previous record of conviction. He however committed murder and took away life of an innocent person. Murder is on increase. We pray for a deterrent sentence. We *propose life imprisonment.*

## *Mr. Twinamatsiko (Allocutus)*

The convict is a first offender. He has readily pleaded guilty and saved time and resources. He is remorseful and 25 repentant. He has been on remand since 18/04/2012. He prays that these factors be taken into account when *passing sentence. We so pray.*

*Convict (Allocutus)* 30 *I did the thing accidentally after drinking beer in a bar. That* is what caused me to do what I did.

## SENTENCE AND REASONS

The convict committed a grave offence of murder. He took 35 the life of an innocent person in a brutal manner. This needs a deterrent sentence. I have weighed the seriousness of the offence against the mitigating factors as adduced by Mr. Twinamatsiko-Counsel for Convict. All factors taken together in circumstances of the case, the convict is 40

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sentenced to Twentg (2O) gears'impisonmenf. [Emphasis appliedl.

Bashrrija K. Andreut JUDGE so/ 1o/2012

231 During the proceedings in this Court, Mr. Semalemba emphasized that the phrase in the sentencing order that \*....a11 factors taken together in circumstances of the case", would be sufficient to show that the Judge considered the remand period when sentencing. Indeed, when stating his case in mitigation, Appellant's counsel did mention that his client had been on remand since 18/04 /2012. The respondent wants this Court to consider the context of that submission as having a bearing on what the Judge hnally ordered.

241 With respect, we disagree. In his sentencing order, the trial Judge lumped together what was submitted as aggravating and mitigating factors, and all other matters including the remand period. It is not clear that he considered that matter which as a constitutional safe guard, should have been considered quite separately from the other matters raised. By doing so, it is not clear that in his order he took into account the remand period, and that it informed him as he decided on a sentence.

251 We find therefore that the sentence imposed upon the Appellant was illegal. We set it aside and accordingly, ground two succeeds. 30

261 Having set aside the sentence, it is not necessary to make ^a decision on ground one. We instead invoke section 11 of the Judicature Act which grants this Court the same powers as the trial court to impose a sentence which we consider appropriate in the circumstances. In doing so, we are guided by the admitted facts and the submissions made in the allocution proceedings on 30/IO/2012. Those have been recorded here and we shall not repeat them. 35

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- We shall in addition be guided by the consistency principle set $\mathsf{S}$ 27] forth in Paragraph 6(c) of the Constitution (Sentencing Guidelines for Courts of Judicature) (Practice) Directions, 2013. Suffice to note, an appropriate sentence is a matter of discretion of the sentencing Judge as each case presents different facts upon which a Judge exercises that discretion. 10 See: Karisa Moses vs Uganda, SC Criminal Appeal No. 23 of **2016).** However, a degree of uniformity is necessary to ensure that the constitutional principle that all persons are equal before the law, is not rendered moot. We have for that reason considered a few previously decided cases. 15 - In Godi Akbar vs Uganda, Criminal Appeal No. O3 of 2013, 281 the Supreme Court confirmed a sentence of 25 years where the Appellant, a member of Parliament, was convicted of killing his wife. In Juventine vs Uganda, CA Criminal Appeal no. 95 of **2014**, the Appellant was convicted on his own plea of guilty 20 having murdered his wife with an axe and sentenced to 23 years' imprisonment. That period was reduced to 18 years after the remand period was deducted. Yet in Mwerinde Lauben vs Uganda, Criminal Appeal No. 151 of 2013, the Appellant was convicted on his own plea of guilty for killing one Kabongoya 25 Kellen whom he attacked and hit with a stick causing her instant death. He was sentenced to 35 years and on appeal, he was resentenced to 27 years and 9 months. - Taking into account the gravity of the offence, the aggravating $29]$ and mitigating factors and similarly decided cases, we sentence 30 the Appellant to 20 years' imprisonment. We are enjoined by Article 28(3) of the Constitution to take into account the period of 6 months and 12 days that the Appellant had spent on remand before he was convicted. That period is deducted from the sentence and he will instead serve a period of 19 years, five months and 18 days with effect from $30/10/2012$ .

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Dated this. day of **September, 2024.** $\mathsf{S}$ HON. EVA K. LUSWATA JUSTICE OF APPEAL $10$ HON. OSCAR KIHIKA 15 JUSTICE OF APPEAL $20$ HON. DR. ASA MUGENYI JUSTICE OF APPEAL

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