[2024] UGCA 277

#### THE REEPUBLIC OF UGANDA

## IN THE COURT OF APPEAL OF UGANDA AT MBALE

(Coram: Egonda, Gashirabake and Kihika, JJA)

### CRIMINAL APPEAL No. 0828 of 2014

(Arising from High Court Criminal Session Case No.00053 of 2010 at Tororo)

#### **BETWEEN**

#### 1. TAABU LAWRENCE

2. MUKAGA DAVID OJAMBO ::::::::::::::::::::::::::::::::::::

#### AND

**UGANDA :::::::::::::::::::::::::::::::::::** (Appeal from sentence of the High Court of Uganda at Mbale before Kawesa, J., dated 14^th September, 2014)

#### **JUDGEMENT OF COURT**

### **Introduction**

The appellants were indicted and convicted on 3 counts, the first of which was murder contrary to sections 188 and 189 of the Penal Code Act and 2 counts of aggravated robbery contrary to section 285 & 286 (2) of the Penal Code Act Cap 120. Appellant no.1 was sentenced to 10 years imprisonment for murder. Appellant no.2 was sentenced to 15 years imprisonment for murder. Both of them were sentenced to 5 years imprisonment on each count of robbery. Sentences on count 1 and 2 were to be served consecutively while the sentences on count 3 were to run

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concurrently with the sentence on count 2. The appellants appealed against sentence only.

## Background

The facts as ascertained from the record are as follows; on the 22"d August at around 8:00 P.m., at Mundaya "A" village, Dabani Sub- county in Busia District, four (4) unidentified men entered the shop of Topista Were, one of them assau-lted her on the face and she fell down. The robbers grabbed her Nokia Phone S/No. 355046006813376 with Sim Card No. 0775558098 and Shs. 100,000/=. The 3 robbers further went and attacked Lyaka Catherine in her shop and stole Shs. 160,000 /=. The L. C. III Chairman of Dabani Sub county Mr. Egesa John Waata now deceased together with others who had sat outside the shops within Dabani Trading Centre, saw the attackers and suspected them to be robbers, they tried to restrain them and the deceased caught one of the robbers, in the process another robber fired gun shots and killed the deceased instantly, there after the robbers disappeared. The incident was reported to Busia Police Station and inquiries were carried out among others to track the robbed phone of Topista Were.

D/C Makhoha Micheal was instructed to track the robbed phone on S/No. 355046006813376, a printout was extracted from MTN Head Offices Kampala, and it revealed that, two hours after the robbery, the robbers removed the original Sim Card No. 0775558098 and inserted in another Sim Card No.0781532208 and the robber called No.0751681001 which belongs to one Fatuma Tibiwa (a woman friend). The owner of No. 0781 532208 became evasive, he could not be contacted.

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Further inquiries revealed that two other Sim Card Number 0784671275 and 077180607 I were inserted and used in the robbed phone after two weeks and two months respectively by A.l (TAABU LAWRENCE). A. I was tracked, arrested and found in possession of the robbed phone, a\_fter his arrest and detention, Mukaga David Ojambo (A.2) owner of No. 0779211310 approached the investigating officer Mr. Mapera Simon to secure the release of A. 1 because he was his relative.

The MTN printout further revealed that, the owner of No. 0781532208 (Robber) regularly communicated with owner of O77996522L one Akinyi Moica, she was traced and she revealed that the owner ofNo. 0781532208 was A.3 (Ojambo Charles Onyango) and further revealed that A.3 at one time introduced her to A.2 and that No. 0781532208 was regularly used to call No. 0779211310 which belongs to A.2.

Ojambo Charles Onyango (A.3) was traced and arrested, upon interrogation he revealed to police that he was in possession ofa gun under his bed. He led the police for a search but no gun was recovered.

Upon arrest of Mukago Ojambo (A.2) the investigating Officer used his phone to call on 07 81532208 and it was discovered that he had saved it in the Names of Osa Osa Osa. He refused to lead the police or reveal the owner of the said number which he saved as Osa Osa Osa but further revealed that No. 0751681001 belongs to Ahamada Muhammed who was asked about the said Number. He revealed that it belongs to his wife Tibiwa Fatuma Hadijja and Tibiwa was in regular communication with the owner of No. 0781532208 using both No. 075168100 1 and 07847O9Ot. Tibiwa further revealed that the owner of the No. 0781532208 was called Karim, the father of her child.

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The brothers of Tibiwa approached police and revealed that the father of the child of their their sister was called Karim Wabwire the owner of No. 0781532208 and vowed to assist police to locate him. After two weeks Karim was tracked by the police and he was found at Mugungu, armed with two guns. He was killed in cross fire. The guns were recovered. After the death of the prime suspect, Tibiwa confirmed that the deceased was the owner of Sim Card No. 0781532208 and the father of her child. She stated that she feared to reveal the incidents before his death because the deceased threatened to kill her if she disclosed. The appellants were indicted of murder and aggravated robbery and convicted to sentenced to 15 years and 2O years for Al and .,{2 respectively. Being dissatisfied the appellants appealed to this court on the sole ground against sentence

## C'round of appeal

That the learned trial judge erred in law and fact when he sentenced the appellart to 15 years and 2O years respectively for A1 and A,2 which are harsh and excessive sentences.

## Representation.

At the hearing of the Appeal, the the appellant was represented by Obedo Deogracious on state brief, while the respondent was represented by Ms. Immaculate Agutuko, Chief State Attorney from the office of Dpp. The court granted the appellant leave to appeal against sentence only and validated the memorandum of appeal. Both counsel proceeded by way of written submissions.

# Appellant's submission

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The appellant's counsel submitted that the appellant's were sentenced to 2Oyears for A2 and lSyears for Al which is harsh and excessive. Counsel cited the case of; Magala Ramadan v Uganda SCCA I of 2014 in proposition that this court can reduce this sentence.

It was the submission of the appellants' counsel that the l"t appellant was sentenced to lOyears and the 2"d appellant was sentenced to lSyears on count 1 of murder and that the learned trial judge did not give reasons for variance in the years. The appellants prayed that they are given a lenient sentence which will result in their release.

# Respondent's submission

The respondent opposed the appeal and submitted that both appellants were convicted and sentenced on both counts of murder and aggravated robbery. Counsel submitted that lst appellant was sentenced to 10 years and 2"a appellant was sentenced to 15 years for murder and Syears each for aggravated robbery.

The respondent conceded that the period spent on remand by the appellants was not deducted and submitted that court can exercise it is power to deduct the period spent on remand by the appellants. Counsel relied on Section 11 of the Judicature Act to support this submission.

Counsel prayed that this court upholds the conviction of both appellants and exercises its powers enshrined under Section 11 ofthe Judicature Act.

# Court's consideration

For this Court, as a first appellate court, to interfere with the sentence of a trial Court, it must be shown that the sentence is illegal, the sentence is harsh or manifestly excessive, there has been fajlure to exercise discretion,

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there was failure to take into account a material factor and an error in principle was made.

The Supreme Court in Kiwalabye Bernard Vs. Ugan&, Supreme Court Criminal Appeal No. 143 of 2OO1 held thaU

'the appellate coutr is not to interfere wlth the sentence imposed by the trial court whlch has exercised lts dlscretion on sentence unless the exercise of the dlscretion ls such that it results in the sentence lmposed to be manifestly excesslve or so low as to amount to a miscarriage ofjustice or where a trial court ignores to consider an important matter or circumstances which ought to be considered while passing the sentence or where the sentence imposed is wrong in principle."

We sha-ll bear in mind the above principles while resolving this appeal.

It is the appellant's claim that the sentence which was passed against the appellants was harsh and excessive. In addition, that the learned trial Judge did not give reasons for variance in the years in respect to count ^I(murder) where the 1 "t appellant was sentenced l Oyears and the 2"4 appellant was sentenced to lSyears.

The sentencing order of the trial Judge is as follows;

'The convicts were found guilty of two counts all of a capital nature. The first count murder attracts death upon convictlon. The second also as a maximum attracts death. Resident state Attorney has raised what should be aggravating factors. Defence has ralsed mitigations. Accused have also raised allocutus. The following observations will guide this sentence.

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tfo,t &f - l. A.1 was convicted basing on evidence ofrecent possession of stolen property and linkages with A.2 - 2. A.2 was conwicted basing on circumstantial ewidence of phone trucking and dealings with the murder/robbery gangster Karim.

The above factors will in combination with the investigations and fact that they were not directly found at scene of crime remit the aentence from rarest, to the rare of custodial sentence.

The offenses were gruesome and led to impacts as revealed by Resident State Attorney. Both accused/conwicts need rehabilitation, reform, deterrence. To achieve that I sentence them as below.

Count l: Murder

A. l: Will serve custodial period of 10 years. A.2: Will serve a custodial period of 15 years.

Count 2: A.1 will serve a period of 5 years.

4.2 Will serve a period of 5 years.

These sentences will run consecutively. I so order.',

From the above excerpt, it is evident that the trial Judge considered all the mitigating and aggravating factors in arriving at the sentences of l0 and 5 years'in respect to count 1 and count 2 for ttre l"t appellant as well as ¹⁵ and 5 years in respect to count I and count 2 for the 2na appellant.

With regard to counsel's contention that the learned trial judge gave varying sentences to the Ist and 2"d appellant, that is to say that the 2"a appellant was sentenced 15 years instead of 10 years, the learned trial judge stated the reason for the variance in the sentences as hereunder;

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The following obsenrations will guide this sentence.

- 1. 4.1 was conwicted basi on ewidence of recent possession ofstolen property and linkages with A.2 - 2. A.2 was conwicted basing on circumstantial ewidence of hone trucki and de the murder/robberv gangster Karim. (underlined for emphasis)

The above factors will in combinatlon with the lnvestigations and fact that they were not directly found at scene of crlme remlt the sentence from rareat, to the rare of custodial sentence...........,..."

It appears to us that the learned trial judge was making a distinction where none existed. Both species of evidence fall under the head of circumstantial evidence and do not reveal which person participated to a greater or lesser extent in the commission of the offence than the other. We would find no reason justifying the variance in the sentences between the 2 appellants.

Be it as it may, it is a settled principle in law that sentencing is purely at the discretion of the sentencing judge.

In resolving the legal issue that relates to deducting the period the appellalts spent on remand, we agree with the submission of both the appellants and respondent, to the effect that the learned trial Judge did not deduct the period the Appellants had spent on remand. From the record, the Appellants were convicted of three counts, one of Murder and 2 of Aggravated Robbery, which offences attract a maximum sentence of death. The failure to take into account and deduct the period the

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appellants had spent on remand rendered the sentences unconstitutional and illegal.

While exercising the sentencing powers, the learned trial judge ought to have deducted the period the appellants spent on remand. See Article 23 (8f of the Constitution of the Republic of Uganda, i995 that requires the sentencing court to consider the remand period 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 lmprlsonment."

It's also clear from the record that the appellants were arrested on the 19th October,2O09 and were convicted on 18th September, 2014. Those are five years the appellants spent on remand. Section ll ofthe Judlcature Act enjoins this court with powers of the trial court and shall accordingly resentence the appellants afresh.

The appellants committed 3 capital offences, one of which involved the loss of an innocent life. The maximum punishment is the death penalty but this is reserved for the worst of the worst cases or the rarest of the rare cases. And this does not fall among that category. The appellants are lirst offenders with no previous record. They are fairly young with the possibility of reform. We do not find that the evidence suggests that the degree of participation of each of them was significantly more or less than the other. We would lind a sentence of 20 years imprisonment on Count ¹ of Murder will meet the end of justice upon each of the appellants from

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which we shall deduct the period of 5 years spent on remand. We order each of the appellants to serve a period of 15 years imprisonment on count from the 14th September 2014, the date of conviction.

In relation to count 2 we find a sentence of 15 years imprisonment appropriate from which we shall deduct the period of 5 years spent on remand. We sentence each appellant to serve 1O years imprisonment from the 14th September 2014, the date of conviction.

In relation to count 3 we find a sentence of 15 years imprisonment appropriate from which we deduct the period of 5 years spent on remand. We sentence each appellant to serve a period of 10 years imprisonment from the 146 September 2014, the date of conviction.

All the sentences shall run concurrentlv.

Further in relation to the 2 counts of robbery we order compensation to the victims, which is mandatory, pursuant to section 286 (41 of the Penal Code Act. Both appellants are ordered to pay, jointly and severally to the victim of the robbery in count 2, Shs. 1,000,000.00 and in respect of count 3, shs. 1,000,000.00 to the victim of the robbery.

We so order.

Dated and Delivered this day of .. beJt I e-/ ²⁰²⁴ lL L7

Fredrtck Egonda-Ntende WSTICE OT'APPEAL

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$\Omega$ $\mathcal{L}$ $\mathcal{L}_{\mathcal{L}}$ **................**

**.....................................**

Christopher Gashirabake JUSTICE OF APPEAL

John Oscar Kihika **JUATICE OF APPEAL**