[2020] UGCA 2119

# THE REPUBLIC OF UGANDA

# IN THE COURT OF APPEAL OF UGANDA HELD AT MBALE

(Coram: Egonda Ntende, Cheborion Barishaki, Muzamiru Kibeedi, JJA)

# CRIMINAL APPEAL NO.364 OF 2016

..........: APPELLANT **MUHAMMED ::::::::** SSEKANDI 5

#### **VERSUS**

#### ::::::::::::::::::::: RESPONDENT UGANDA ::::

[Appeal from the decision of the High court of Uganda at Mukono (Hon Lady Justice Margaret Mutonyi) dated 07.11.2016 in HCT-14-CR-SC-0077-2016)

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# **JUDGMENT OF THE COURT**

### **BACKGROUND**

The appellant was tried and convicted of the offence of murder contrary to Section 188 and 189 of the Penal Code Act and sentenced to 50 years imprisonment.

The background facts are that on 24.06.2012 at around 7PM the deceased, a one Amir Balabukeye Kakooza, had gone to the home of Gamwosi Karim located in Namawojjolo-East in Mukono District to sell him milk. The appellant attacked the deceased person, whom he accused of having an affair with his wife, cut him with a panga on the right neck and on the hand seriously injuring him. The deceased bled to death while being rushed to the nearest clinic by Gamwosi Karim and a one Lubega Joseph. The appellant escaped into the bush but was arrested the next day by the police. Subsequently the appellant was tried for murder and convicted and sentenced to 50 years imprisonment.

- The appellant appeals to this court against the sentence only on two grounds 25 namely: - 1. That the learned trial judge erred in law and fact when she sentenced the appellant without considering the time spent on remand. - 2. The trial judge erred in law and fact when she sentenced the appellant to 50 years imprisonment which is manifestly harsh and excessive.

The appellant prayed to this court to allow his appeal, set aside the sentence and substitute it with a lesser sentence which would result into his release.

## **APPEARANCES & ARGUMENTS**

The appellant was represented by Counsel Obedo Deogracious of Ms Owor & Co Advocates while the respondent was represented by Ms Joanita Tumwikirize from the office of the Director of Public Prosecutions.

Both parties filed written submissions which they adopted during the hearing.

With regard to ground no. 1, Counsel for the appellant submitted that the trial judge failed to consider the period the appellant spent on remand which rendered the sentence illegal for contravening the mandatory constitutional provision. For this submission Counsel relied on Article 23 (8) of the Constitution of the Republic of Uganda, Wabatuma Bamwine Jamil Vs Uganda, Supreme Court Criminal Appeal No.74 of 2007 and Rwabugande Moses Vs Uganda, Supreme Court Criminal Appeal No.25 of 2014 (Unreported)

With regard to ground no. 2, Counsel for the appellant submitted that the 45 sentence of 50 years was harsh and excessive in so far as the trial judge did not consider the mitigating factors namely; that the appellant was a first offender with no criminal record, he has a family of 4 children who need him during this trying moment and he has now spent 8 years in incarceration inclusive of the years before conviction and after.

Counsel further submitted that the trial judge did not follow the principle of Stare decisis et non quieta movera which requires lower courts to abide with previous decisions of higher courts and to maintain consistence in sentencing. For this submission Counsel referred to the case of Magala Ramadhan Vs Uganda Supreme court Criminal Appeal No1 OF 2014 9unreported) where the sentence for each count of murder was 7 years imprisonment; John Kasimbazi & others Vs Uganda, Court of Appeal Criminal Appeal No. 167 of 2013 where this court reduced the sentence of life imprisonment for the conviction of murder to 12 years imprisonment and Oketcho Mugambe & others Vs Uganda, Court of Appeal Criminal Appeal No. 183 of 2009 where the appellant convicted of murder 60 had her sentence reduced by this court to 20 years on each count.

Counsel concluded by inviting this court to allow the appeal, set aside the illegal, harsh and excessive sentence and substitute it with a lesser one which would result in the release of the appellant.

Counsel for the respondent opposed the appeal. 65

As far as ground no. 1 is concerned, Counsel for the respondent submitted that the trial judge had rightly stated that the period spent on remand was included in the sentence of 50 years imprisonment.

As for ground no. 2, Counsel for the respondent submitted that the sentence was not harsh and excessive in light of the aggravating factors considered by the trial 70 judge.

Further, Counsel submitted that the maximum sentence for the offence of murder is death and therefore the sentence of 50 years was not illegal. In support of her submission, Counsel cited the case of Kaddu Lawrence Vs Uganda, Supreme

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Court criminal Appeal No.72 of 2018 (Unreported) where the appellant 75 committed murder using a panga and killed the man alleged to cheat with his wife. His sentence of life imprisonment was not interfered with by the Supreme Court as being legal.

Counsel concluded by inviting us to uphold the sentence and dismiss the appeal.

In rejoinder, Counsel for the appellant submitted that the learned trial judge had 80 the responsibility to determine the period of remand so as to enable the appellant to count with precision the actual length of the sentence he is to serve.

In default, the sentence was rendered ambiguous and ought to be vacated. For this submission Counsel relied on the case of Kabiswe Issa Vs Uganda, Supreme Court Criminal appeal No.8 of 2002 and Semakula Grace & Amor Vs 85 Uganda, Court of Appeal Criminal Appeal No.104 OF 2013.

## **ANALYSIS BY THE COURT**

It is now settled that for the Court of Appeal, as a first appellant court, to interfere with the sentence imposed by the trial court which exercised its discretion, it must be shown that the sentence is illegal, or founded upon a wrong principle of the 90 law; or where the trial Court failed to take into account an important matter or circumstance; or made an error in principle; or imposed a sentence which is harsh and manifestly excessive in the circumstances. See Kamya Johnson Wavamuno Vs Uganda, Supreme Court Criminal Appeal No.16 of 2000 (Unreported); Kiwalabye Bernard Vs Uganda, Supreme Court Criminal Appeal 95 No. 143 of 2001 (unreported); Wamutabanewe Jamiru Vs Uganda, Supreme Court Criminal Appeal No. 74 of 2007 and Rwabugande Moses Vs Uganda, Supreme Court Criminal Appeal No. 25 of 2014

It is with the above principles in mind that we shall now proceed to analyse the grounds of appeal. 100

### GROUND NO. 1- REMAND PERIOD

The complaint of the appellant under ground no. 1 is that the trial judge did not take into account the remand period when sentencing the appellant to 50 years imprisonment which rendered the sentence illegal.

The respondent did not agree. 105

In sentencing the appellant the trial judge stated thus:

"...he is sentenced to 50 years imprisonment period spent on remand inclusive."

Article 23 (8) of the Constitution of the Republic of Uganda, 1995 imposes a mandatory obligation on the court to take into account the remand period while 110 sentencing an accused person in the following terms:

> "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."

The question that arises is whether the phraseology used by the trial judge while sentencing the appellant namely, "50 years imprisonment period spent on remand inclusive", fulfilled the mandatory constitutional obligation on her part to "take into account" the remand period?

In the circumstances of this case, we are satisfied that it did not. The sentence 120 imposed by the trial judge was vague and confusing. The trial judge did not indicate when the sentence commences. Section 106 (2) of the Trial on Indictments Act requires that sentences are to commence from the day the sentence is imposed. The judgment does not indicate whether the remand period was credited to the convict or otherwise taken into account. A judgment 125 is supposed to speak for itself so that the convict knows from the judgment

itself the imprisonment term he/she is to serve with sufficient precision and not

to be left by court to be at the mercy of the implementing authorities to put an interpretation to what the court meant.

In Tatyama Fred V Uganda, Court of Appeal Criminal Appeal No.107 of 130 2012, the learned trial Judge while sentencing that appellant noted that she had considered all the circumstances of the case and the period spent on remand before sentencing the appellant to twenty years imprisonment. This Court found that the said sentence was vague as the trial Judge was silent on whether the period of 3 years that the appellant had spent on remand had 135 been deducted from the final sentence. This Court reduced the sentence to 17 years and 4 months after taking into account the period that the appellant had spent on remand.

In the same vein, we find that the words used by the trial judge fell short of the standard set out in Article 23 of the constitution of the Republic of Uganda, 140 1995. Accordingly the sentences imposed by the trial judge are hereby set aside for being illegal and exercising our powers under section 11 of the Judicature Act, proceed to impose a fresh sentence upon the appellants. It is unnecessary to consider ground 2, whether or not the sentences were manifestly harsh and excessive.

The appellant was at the time of commission of the offence about 32 years of age and thus capable of reform. He is a first offender. These are mitigating factors. However, he terminated life in a very gruesome manner and robbed the family of the deceased a bread winner.

This Court is likewise bound to follow the principle of "parity" and 150 "Consistency" while sentencing while bearing in mind that the circumstances under which the offences are committed are not necessarily identical. See Sentencing Principle No.6(c) of the Constitution (Sentencing Guidelines for

Courts of Judicature) Practice Directions, 2013 - Legal Notice No.8 of 2013 and Aharikundira Yustina Vs Uganda, Supreme Court Criminal Appeal No. 27 155 of 2015.

In Akbar Hussein Godi Vs Uganda, Supreme Court Criminal Appeal No.03 of 2013 where the appellant had shot his wife to death after having previously threatened her several times to kill her, a sentence of 25 years' imprisonment was imposed on appeal for the offense of murder.

In Rwabugande Vs Uganda, Supreme Court Criminal Appeal No. 25 of 2014 where the trial court had sentenced the appellant to 35 years for beating the deceased to death with his herdsmen for failing to release appellant's cattle which had trespassed into the deceased's land, the Supreme Court reduced the sentence to 21 years on appeal.

In Aharikundira Yusitina Vs Uganda (supra) where the appellant brutally murdered her husband and cut off his body parts in cold blood, the Supreme Court set aside the death sentence imposed by the trial court and substituted it with a sentence of 30 years imprisonment.

#### DECISION. 170

- The appeal is allowed. - 2. The sentence of 50 years imprisonment imposed by the High Court is hereby set aside. - 3. The appellant is hereby sentenced to 20 years' imprisonment. From that term, we deduct the period of 4 years 4 months and 6 days that the appellant spent 175 on pre-trial detention.

4. We therefore sentence the appellant to a term of 15 years 7 months and 24 days' imprisonment to be served from the 31^st day of October 2016, the date of conviction.

Signed, dated and delivered at Mbale this. James day of September 2020. 180

$\lambda$ REDRICK EGONDA-NTENDE

**Justice of Appeal**

**EXANANA**

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BARTSHAKI CHEBORION **Justice of Appeal**

**MUZAMIRU KIBEEDI Justice of Appeal**

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