[2025] UGCA 222

#### THE REPUBLIC OF UGANDA

## IN THE COURT OF API'EAL OF UGANDA AT KAMPALA

[Coram: Christopher Gashirabake, Dr. Asa Mugcnyi and John Mike Musisi JJAI

CRIMINAL APPEAL No.0l I I OF 2020

# [Appeal from the judgment of the High Court of Uganda at Nakawa (Alex Mackay Ajiji, J) criminal Case No. SC.05 of 2015 delivered on22"d October, 20181

### SOITA GREGORY KANYIKE

alias WANDEME NICHOLAS:::::::::::::::::::::::::::::::::::::::::APPELLANT VT]RSI. JS

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

### JUDGMENT OF THE COUITT.

#### Introduction.

This is an appeal against sentence only. The appellant was indicted before the High Court ofUganda at Nakawa on two counts ofaggravated robbery contrary to Section 285 and 286 of the Penal Code Act, Cap. 120 (now Sections 266 and 267 Cap.lZ8) and the murder of Ayiko Drani Pascol Contrary to Section I 88 and I 89 of the Penal Code Act, Cap. 120 (now Sections 1 7l and 172 Cap.l29). Following a plea bargain agreement entered before Court on the 22"d October 2018, the appellant was found guilty and convicted on both counts and sentenced to l5 years' imprisonment on each count with both sentences to run concurrently. The appellant now appeals against the sentence as being illegal, because the Court never considered the period which he spent on remand at the time he was sentenced' 15 20

fl'lltl

llPage

#### BACKGROUND.

The particulars of the indictment are that the deceased Ayiko Drani Pascol was employed as a dog handler by KK security company and was posted to provide security services to Borllore Logistics Africa at Ntinda, Nakawa Division in Kampala District. The appellant who was indicted as Al also worked as a security guard with the same company and was also aftached to the same company to guard the company premises.

The appellant was also indicted together with Kasenke Simon Peter (A2), a store keeper at Borllore Logistics Africa, Kaddu Jonathan (A3), a businessman and Ogweng Moses alias Odongo Justine, a supervisor at KK Security company. 10

On the night of 3l't December,2014 the appellant was tasked to man the gate to the premises at Borllore Logistics Africa, Ntinda in Nakawa Division, Kampala District, while the deceased, Ayiko Drani Pascol, a dog handler was at the back of the said

premises. 15

On the same day the appellant opened the main gate of the said premises and allowed in a fuel tank truck, which had 05 occupants. The said occupants after gaining entry moved at the back of the premises where they attacked the deceased, put him in ^a drum and used a rope to tie his hands'kandoya' style and murdered him. They then proceeded to siphon about 5,600 litres of fuel into the fuel tank which they drove off.

The appellant abandoned his work and joined the said group. They drove off to ^a petrol station at Nsangi trading centre where they emptied the fuel tank and then proceeded to Ndeeba where they shared the proceeds of their loot.

lllt

2lPage

The matter was reported to Jinja Road Police Station and investigations commenced leading to the arrest of the appellant from his home area in Mbale. Upon arrest the appellant admitted having received Ug.shs 1,000,000 out of the loot.

The appellant then recorded a charge and caution statement where he admitted the offense charged and stated how he used the money.

The body ofthe deceased was recovered from the scene of crime and post-mortem conducted on PF48B at Mulago Mortuary which revealed that the deceased died as a result of strangulation and suffocation.

On 22'd October,20l8 a plea bargain agreement was executed by the appellant and the state. It was witnessed by the appellant's Counsel, a one Kemigabo Maureen. The appellant admitted the offences of aggravated robbery and murder of Ayiko Drani Pasco on 3 I '' December, 2014 at Borllore Logistics. He agreed to be sentenced to l5 years' imprisonment on each of the two counts, to run concurrently. 10

On the same day 22nd October, 2018 when the matter came up for hearing, the appellant, pleaded guilty and the plea bargain agreement was confirmed by the trial Judge. The appellant was convicted on his own plea of guilty and sentenced to ¹⁵ years' imprisonment on each count. The sentences were to run concurrently. 15

The appellant now appeals against the sentence on the ground that the same is illegal, the trial Judge having failed to subtract from the sentence the period spent on remand.

It is prayed for the appellant that this Court be pleased to allow the appeal, set aside the sentence and impose the appropriate sentence.

l,l

#### Representation.

At the hearing of this appeat, the Appellant was represented by Ms. Nalule Shamim of IWs Musangala Advocates and Solicitors on state brief and the Respondent was represented by Ms. Happiness Ainebyona, Chief State Attorney at the Directorate of Public Prosecutions.

Ground of the appeal.

The learned trialJudge erred in law and fact when he passed an illegal sentence of 15 years without subtracting the period the appellant spent on remand thereby occasioning a miscarriage ofjustice.

#### Submissions of the appellant. 10

Counsel for the appellant submined that, the learned trial judge passed an illegal sentence of l5 years when he did not deduct the period the appellant spent on remand as required by Article 23 (8) of the Constitution and guideline l5 (l) and (2) of the Constitution (Sentencing Guidelines for Courts of Judicature) (Practice) Directions 2003 and the supreme Court decision of Rwabugande Moses Vs

# Uganda, SCCA 25 oI2014.

Counsel further submitted that Article 23 (8) of the Constitution makes it mandatory for any period an accused person has spent in lawful custody to be deducted from the sentence he is given, short ofwhich the sentence is deemed illegal

#### as reiterated in Rwabugande Moses Vs USandaQuRr) 20

Counsel prayed that the appeal be allowed, the sentence passed by the trial judge be found illegal for failure to comply with Article 23 (8) of the Constitution and that the period of3 years and 08 months that the appellant spent on remand be deducted from the sentence of 15 years.


4lPage

### Submissions by Counsel for Respondent.

Counsel for the respondent conceded to the appeal. She submitted that, indeed the sentence imposed on the appellant was illegal for failure by the learned trial Judge to take into account the period the appellant spent on remand.

5 Respondent's counsel further submitted that Rule 12 (5) of the Judicature (Plea Bargain) Rules,20l6 provides that a plea bargain confirmation shall be signed by parties before the presiding judicial officer in the form set out in schedule 3 and shall become part of the record and binding upon the prosecution and the accused.

Counsel cited the decision this Court in Lwere Bosco Vs Uganda, Criminal Appeal

No,531 of 2016 for the proposition that an appeal premised on severity of a sentence cannot arise out ofa plea bargain agreement where parties negotiate voluntarily and agree on the terms thereof. To that end, she counsel contended that a convict cannot later change his mind and lodge an appeal faulting the trial Judge whose discretion in the plea bargain proceedings is limited to confirming a sentence voluntarily 10

initiated and agreed to by the parties. She also cited Arinaitwe Gerald Vs Uganda ,Criminal Appeal No.l9l of 2016 and Aria Angelo Vs Uganda Criminal Appeal No.439 of 2015 which reiterated the position in Lwere Bosco vs Uganda (supra). 15

It was further submitted for the Respondent that the discretion of a trial Judge can only be interfered with by the appellate court where it is evident that the sentence

imposed was illegal or harsh and manilestly excessive as to amount to an injustice. She cited Kyalimpa Edward Vs Uganda, SCCA No.l0 of 1995 to support her argument. 20

Finally, counsel conceded that the time spent on remand ought to be considered as per Article 23 (8) of the Constitution which was emphasized in Kizito Ssenkula Vs

Uganda, CACA 24 of 2001. She invited court to invoke its original Jurisdiction 25

5lPage c\/ rutl

under Section ll of the Judicature Act, Cap.l3 and Article 23 (8) of the Constitution and take into account the period the appellant spent on remand before trial and uphold the sentence of l5 years agreed upon in the plea bargain.

Counsel for the Respondent prayed that court finds that the appeal fails in part, that the conviction be upheld, the period spent on remand by the appellant before trial be taken into account and should arithmetically be deducted in passing the sentence of ^I5 years' imprisonment upon the appellant.

## l Consideration by the court.

As the first appellate court in this matter we have a duty to re-appraise all evidence adduced before the trial court and come to our own conclusions of fact and law, while making allowance fbr the fact that we did not see or hear the witnesses testify' See Rule 30 (l) (a) of the Judicature (court of Appeal Rules) Directions' S.l l3- I0 and Kifamunte Henry Versus Uganda, Supreme Court Criminal Appeal No.70 of 1997. 10 15

This court is also vested with the same powers as those of the trial court to impose ^a sentence it considers appropriate as per Section I I of the Judicature Act, Cap. 13.

A careful perusal of the record reveals that the only point of contention, which was also conceded by the Respondent is that the leamed trial Judge erred in law and fact when he did not consider the pre{rial remand period of the appellant while handing down the sentence of l5 years' imprisonment agreed upon by the parties in the plea bargain agreement dated22"t October, 2018. The appellant has not challenged the process of the plea bargain agreement or its legality.


SlPage

We have as well considered the contents of the plea bargain agreement and we find that the same was proper as there were no legal or procedural flaws. It conforms the Judicature (Plea Bargain) Rutes, 20 16.

The contention in this appeal stems from the constitutional guarantees on the rights of the accused persons under Article 23 (8) of the Constitution of the Republic of Ugand4 1995 (Amended).

Article 23 (8) of the Constitution and Guideline 15 of the Constitution (Sentencing Guidelines for Courts of Judicature) (Practice) Directions, 201 3 were expounded in Rwabugande Moses Vs Uganda, Criminal Appeal No.25 of 2014. It is now ^a mandatory requirement that the court ought to arithmetically deduct the period an accused person has spent on remand when passing its sentence. Failure to adhere to this requirement renders the sentence imposed by the Court illegal.

An appellate court may only interfere with the sentence imposed by a trial court where such sentence is harsh, manifestly excessive or is tainted with illegality. See,

Kyalimpa Edward Vs Uganda, Criminal Appeal No.l0 of 1995 and Kiwalabye Vs Uganda Criminal, Appeal No. 143 of 200 ^L 15

The leamed trial Judge at page 20 and 2l of the record of proceedings stated as follows;

"The matter has been handled under plea bargain arrangement. The accused has pleaded guilty. I have understood the circumstances under which these offenses were committed. The accused was part o.f the group who conspired to rob and kill the deceased. Although he did not directly participate in both killing and robbery, he still played a peripheral role ofwatching against other incoming persons and letting the truck with which.fuel was stolen. "


TlPage

"I am aware that he is remorseful and a young man, so let him serve l5 years on each count. Sentences to run concurrenlly. "

Clearly, the above record reveals that the leamed trial Judge did not consider deducting the period the appellant spent on remand. The appellant according to the record was remanded to prison on 6th February, 2015 and committed for trial at the High court on l4'h September, 2015. On 22nd October, 2018 he was convicted and sentenced to 15 years' imprisonment on each count. The sentences were to run concurrently. Arithmetically, the appellant had already spent 3 years and 8 months in prison by the date he was sentenced.

We are of the view that competent courts are obliged to take into account the pretrial remand period ofan accused person when passing sentence. The same extends to sentences arising from plea bargain. Consequently, the 15 years' imprisonment on each count imposed on the appellant by the learned trial Judge violated Article 23 (8) of the Constitution in as far as it deprived the appellant of the constitutional guarantee ofbenefiting from deduction ofthe period he spent in lawlul custody prior to his trial. The sentence passed by the trial court was for that reason illegal. 10 t5

This appeal is therefore allowed on the following terms;

This Court shall not interfere with the plea bargain agreement daled 22"d October, ²⁰¹8 as the same was properly entered by the trial Courl hence the 15 years'

imprisonment agreed upon by the parties is maintained. This Court will proceed to deduct from that sentence the period of 3 years and 8 months that the appellant spent on remand. The appellant will therefore serve a sentence of 1l(Eleven) years and 4(Four months) from the 22"d October 201 8 on each ofthe two counts. The sentences shall run concurrently.

ElPage Mailu

$\frac{1}{\sqrt{2}}$ day of 2025 Dated signed and delivered this ..... $\mathsf{S}$ **Christopher Gashirabake Justice of Appeal** $10$ Dr. Asa Mugenyi **Justice of Appeal** 15 John Mike Musisi **Justice of Appeal**

$\ddot{\cdot}$