[2025] UGSC 18

#### THE REPUBLIC OF UGANDA

# IN THE SUPREME COURT OF UGANDA AT KAMPALA

[CORAM: TIBATEMWA-EKIRIKUBINZA; TUHAISE; CHIBITA; MUSOTA; MADRAMA; JJ. SC]

## CRIMTNAL APPEAL NO 82 OF 2020

## **BETWEEN**

...................................... **SSENYONGA KABBO...................................**

## AND

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

(An appeal from the Judgment of the Court of Appeal Kiryabwire, Bamugemereire: JJA and Kasule; Ag. JJA) dated, 06^th August, 2021 In Criminal Appeal No. 50 of 2011)

#### **JUDGMENT OF THE COURT**

This is a second appeal filled by the appellant Ssenyonga Kabbo against sentence arising from the decision of the Court of Appeal which set aside the sentence of the High Court 45 years' imprisonment and substituted it with 43 years and 5 months' imprisonment for the offence of murder to Sections 188 and 189 of the Penal Code Act.

## **Background:**

The deceased, Godfrey Lubega Ssalongo, a boda rider, was hired by the appellant, Ssenyonga Kubbo, on July 16, 2009, to transport him from Kibuye-Ndeba, Kampala, to Bujuko-Mityana. On the same day, PW1, Charles Kibuye, heard a sudden screeching of a motorcycle. Curious about what had happened, he approached the scene. There, he saw a motorcycle lying down, with two people apparently involved in a scuffle on the ground; the accused was on top of the deceased. The appellant then pulled out a knife, causing PW1 to withdraw in fear. PW1 raised the alarm, and people, including PW2, responded. They found the accused attempting to start the motorcycle, leaving the deceased in a pool of blood. The rider, Ssalongo Lubega Godfrey, was later pronounced dead. The appellant was arrested, charged, tried, convicted, and sentenced to 45 years.

Dissatisfied with the High Court's decision, the appellant appealed to the Court of Appeal, which upheld his conviction but set aside the sentence.

### **Ground of Appeal**

1. The Court of Appeal erred in law when they passed a sentence of 43 years and 5 months' imprisonment against the appellant after ignoring material factors in the mitigation of the appellant's sentence.

#### **Representation**

At the hearing of the appeal, the appellant was represented by learned counsel Andrew Sebugwawo on State Brief while the respondent was represented by the learned Assistant DPP Ms. Vicky Nabisenke. The appellant was present in court. Learned counsel addressed court by way of written submissions and we dismissed the appeal for want of jurisdiction and now render out reasons therefore.

## Appellant's submission

Counsel for the appellant submitted that the learned Justices failed in their duty as 1^st appellate court to subject the evidence on record to fresh scrutiny and hence reached an erroneous decision that the resentencing Judge had considered all the mitigating factors before arriving at the sentence of life imprisonment. Counsel submitted that had they done so, they would have found that the learned resentencing judge had not considered some material facts and mitigating factors that counsel for the appellant had raised before him and which the appellant had confirmed, namely:

- Remorseful and repentant. $i.$ - First time offender. ii. - Still young man that is capable of reforming. iii.

Counsel for the Appellant argued that the learned Justices of the Court of Appeal did not take into the account the Appellant had a spent on remand as provided under Article 23 (8) of the Constitution. That the Appellant has spent 19 months on remand.

In conclusion learned Counsel invited this Court to find that the sentence of life imprisonment is improper and should be set aside or substituted with an appropriate sentence.

## **Respondent's Submissions**

Counsel for the respondent on the other hand opposed the appeal and submitted that all mitigating factors were considered and the 1^st appellate court had referred to the resentencing proceedings by the trial judge. It was submitted that the factors included the fact that the appellant was a first time offender, young and was cable of reform and had been on remand since 2009.

She said that notwithstanding, the Court found that the aggravating factors outweighed the mitigating factors. That the cold blooded circumstances under which the appellant committed the murder, a sentence of 43 years and 5 months' imprisonment was appropriate

## Consideration of the Court

We have addressed ourselves to the record, submissions and also the authorities which Counsel for both parties cited. We note that the appeal is against sentence only. We must therefore be guided by Section 5 (3) of the Judicature Act which deals with appeals to the Supreme Court in Criminal Matters as follows:

"5. Appeals to the Supreme Court in Criminal matters

- $(1)$ ... - $(2)$ ...

(3) In the case of an appeal against a sentence and an order other than one fixed by law, the accused person may appeal to the Supreme Court against the sentence or order, on a matter of law, not including the severity of sentence."

Section 5 (3) is clear. It gives the Supreme Court discretion to hear appeals from $5(3)$ the Court of Appeal decision on sentence on points of law only excepting the harshness or severity of penalty. An example of an appeal against sentence on a

point of law only is the failure to take into account the period the accused has spent on remand before his conviction contrary to article 23 (8) of the Constitution.

In this appeal we conclude that this appeal is, in essence, a challenge to the severity of sentence and is thus prohibited by section 5 (3) of the Judicature Act. We do not have jurisdiction to hear it and we will dismiss it.

Nevertheless, we would like to make some comments about the principles governing reevaluation of evidence by this court.

Ordinarily, this Court on a second appeal will not re-evaluate the evidence in the manner of a first appellate court. It can only re-evaluate evidence and interfere with the concurrent findings of the lower courts where it is apparent that on approaching its task as a first appellate court, the Court of Appeal failed in its duty to properly review the evidence on record. (See: Bogere Charles v Uganda¹; **Kifamunte Henry v Uganda²**)

It is also settled that sentencing is a matter of Court's discretion and has to be exercised judiciously. The principles upon which an appellate Court will act in exercising its jurisdiction to review sentences are firmly established. An Appellate Court can only interfere with the sentence where a trial Court failed to exercise its discretion judiciously or acted on wrong principles.

In **Kiwalabye v Uganda** ³this Court stated that:

"The appellate Court is not to interfere with the sentence imposed by a trial Court where the Court has exercised its discretion of sentence, unless the exercise of discretion is such that it results in the sentence imposed to be manifestly excessive or so low to amount to a miscarriage of justice, or where the trial Court ignores to consider an important matter or circumstance which ought to be considered while passing sentence or where sentence imposed is

^&lt;sup>1</sup>Criminal Appeal No. 1 of 1997 (SC)

^&lt;sup>2</sup> Criminal Appeal No. 10 of 1997 (SC)

^&lt;sup>3</sup> Criminal Appeal No. 143 of 2001 (SC)

wrong in principle. Where the trial Court gives reasons, the Appellate Court will interfere only if the reasons given are clearly wrong or untenable. Where no reasons are given for the decision, the appellate Court will interfere if it is satisfied the order is wrong."

$\mathcal{B}$

Counsel for the appellant faults the learned Justices for failing to properly reevaluate the evidence regarding sentencing and there by reaching an erroneous decision. He based his contention on the principle of law that an appellate court will only interfere with a sentence imposed by a trial judge if it is evident that the trial judge ignored to consider an important matter or circumstances which ought to be considered when passing sentence or if the sentence is manifestly harsh and excessive in view of the circumstances of the case.

Counsel's main contention is that the trial Judge did not consider the mitigating factors presented in court while passing sentence, saying that this adversely prejudiced the appellant. Counsel gave the said mitigating factors as (1) $1^{st}$ time offender (2) remorseful and repentant and (3) young and capable of reform. He also contended that the sentence of 43 years and 5 months' imprisonment was arrived at by the appellant Court without taking into account the 19 months the appellant had spent on remand.

The respondent's counsel opposed the appeal and contended that all the above factors were considered by both Courts.

Regarding the first allegation that the learned Justices of the Court of Appeal did not evaluate the evidence on record, we find that the Justices did evaluate the evidence presented before the trial judge and that they proceeded to reproduce the relevant excerpts from the proceedings in the trial Court in their judgment. After that they reached their own conclusion on this point. This is what the Court of Appeal observed *inter alia*:

"From the above holding it was apparent that the Trial Judge merely mentioned in passing the time the Appellant spent on remand but did not specifically and definitely take it into account and exclude it from the sentence. Her sentence was indeed ambiguous about time spent on remand and hence and did not comply with Article23(8) of the constitution. It was necessary for the Trial Judge to demonstrate that she had acknowledged that time. Consequently, we find that the test under Article 23(8) of the Constitution failed. Having found that the Trial Judge did not satisfactorily comply with Article 23(8) of the Constitution, we set aside the sentence of 45 *years'* we have considered the aggravating and mitigating circumstances as laid out in the proceedings that is; the Appellant is a first-time offender, a young man capable of reform. we have also considered the cold-bloodied circumstances under which the appellant committed a gruesome murder. we are of the view that the sentence of 45 years, had it been properly executed, would have been sufficient. As a court of Appeal, we have considered the 19 months that the Appellant spent on remand. This Appeal is accordingly allowed. Given the time spent on remand, the fact that the Appellant is *youthful and is capable of reform, the sentence of 45 years is set aside and* is substituted by a sentence of 43 years and 5 months Imprisonment"

The Court of Appeal's excerpts clearly show that in overturning the High Court's 45-year sentence and imposing a 43-year and 5-month sentence, the Court of Appeal specifically considered the Appellant's 19 months on remand. Had the lower court not specifically **deducted** the time spent on remand from the sentence the resulting punishment would have been illegal and would constitute an appeal on a matter of law, provided for under Section 5 (3) of the Judicature Act reproduced above. The record clearly shows that the Court of Appeal did not fall short of its constitutional obligation under Article 23(8) of the Constitution.

It is also the contention of the Appellant that in arriving at the sentence the Court of Appeal did not consider mitigating factors which would be in favour of the Appellant – his age and the fact that he was a first offender.

## In **Magala Ramathan v Uganda⁴** this Court held that:

$\mathcal{L}^{\mathcal{L}}$

"in arriving at a sentence, a judicial officer is obliged to balance the mitigating factors against the aggravating factors. However, after identifying the mitigating and aggravating factors, a judge may come to the conclusion that in the circumstances of the particular case, the aggravating factors outweigh *what would have been mitigating factors.*

In cases of serious crime, the personal circumstances of the offender, by themselves, will necessarily recede into the background. Once it becomes clear that the crime is deserving of a substantial period of imprisonment, the (mitigating factors) are largely immaterial to what that period should be. ...

*Nevertheless, the fact that the judicial officer was alive to what the accused* submitted in mitigation must be evident on record. It must therefore be stated by the judicial officer that the sentence was arrived at with both the mitigating and aggravating factors in mind. It is only then that the accused will be sure that the judge addressed his or her mind to the cited mitigating factors but nevertheless came to the conclusion that the aggravating factors outweighed the mitigating ones."

Again, it is clearly on record that the Justices Court of Appeal addressed their mind to the cited mitigating factors. In exercising their discretion, they nevertheless came to the conclusion that the aggravating factors outweighed the mitigating factors. Even on this point, we have no justification for interfering with the decision of the Court of Appeal.

In the final analysis the appeal is against severity of penalty forbidden by section 5 (3) of the Judicature Act and we accordingly dismiss it and uphold the Sentence imposed by the Court of Appeal.

^&lt;sup>4</sup> Criminal Appeal No. 01 of 2014.

Signed this 17th day of April 2025<br>Wilsalenwer

## HON. JUSTICE PROF. TIBATEMWA-EKIRIKUBINZA, JSC

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# HON. JUSTICE PERCY TUHAISE, JSC

Devel BiDits

## HON. JUSTICE MIKE CHIBITA, JSC

Wellen In.

HON. MUSOTA STEPHEN, JSC

morri

HON. JUSTICE MADRAMA CHRISTOPHER, JSC