[2018] UGCA 103

# THE REPUBLIC OF UGANDA

# IN THE COURT OF APPEAL OF UGANDA AT MBARARA

## CRIMINAL APPEAL NO.200 OF 2013

TARINDEKURA JACKSON::::::::::::::::::::::::::::::::::::

#### **VERSUS**

10 UGANDA:::::::::::::::::::::::::::::::::::

(An Appeal against the sentencing order of Hon. Justice P. K Mugamba dated 9^th December, 2013 in Criminal Session Case No.0244 of 2013)

CORAM: HON. LADY JUSTICE ELIZABETH MUSOKE, JA

HON. MR. JUSTICE CHEBORION BARISHAKI, JA

HON. MR. JUSTICE CHRISTOPHER IZAMA MADRAMA, JA

## **JUDGMENT**

$\mathsf{S}$

### **Introduction**

This is an appeal against the decision of Mugamba, J (as he then was) in Rukungiri High Court Criminal Session Case No.0040 of 2003 wherein the 20 learned Judge convicted the appellant of murder and sentenced him to death. In his resentencing ruling following the Supreme Court's decision in Suzan Kigula and Others V Attorney General, Constitutional Appeal No.03 of **2006,** he set aside the death sentence and resentenced the appellant to imprisonment for the rest of his life. Being aggrieved with the sentence, the 25 appellant appealed to this Court on sentence only and the sole ground of

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appeal was that the learned trial Judge erred in law and fact when he $\mathsf{S}$ sentenced the appellant to imprisonment for the rest of his life which was harsh and manifestly excessive in the circumstances.

At the hearing of the appeal, Ms. Kamugisha Maclean appeared for the appellant while Mr. David Ndamurani Ateenyi, Senior Assistant DPP represented the respondent.

Counsel for the appellant submitted that the resentencing Judge sentenced the appellant to imprisonment for the rest of his life which in his view was as good as a death sentence. Counsel further submitted that the appellant was 23 years at the time of commission of the offence and had been in prison for about 16 years yet he was remorseful and a first offender. He prayed for Court

to acquit the appellant having served a sentence of 14 years and 4 months in addition to having been on remand for one year and 7 months.

Counsel for the respondent submitted that in his resentencing ruling, the resentencing Judge took into account both the aggravating and mitigating factors before substituting the death sentence with life imprisonment. 20 Counsel further submitted that this case falls into the category of the rarest of the rare cases as provided for under Rule 18 of the Constitution (Sentencing Guidelines for Courts of Judicature) (Practice) Directions, 2013. Counsel added that regarding the circumstances of this case, the learned resentencing

Judge was quite lenient when he sentenced the appellant to life 25 imprisonment. He prayed that Court upholds the sentence of life imprisonment imposed by the learned resentencing Judge.

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The facts of this case as accepted by the learned trial Judge were that $\mathsf{S}$ Mushasha Fred, was an uncle to the appellant. For two years the two lived in the same house which belonged to the deceased. After sometime, it appeared the deceased was missing and PW1, on several occasions asked the appellant where the deceased might be. On the last occasion, the appellant told PW1 that the deceased had told him he would go to Nyabushozi to visit relatives 10 first before proceeding to Kampala. It was then that the appellant volunteered to go and check on the deceased. Thereafter the appellant did not appear until he was arrested. It was later when a body was discovered in a disused pit latrine 15 meters from the house that the appellant and the deceased occupied. The body was wrapped in a blanket and was decomposed. 15

The appellant was prosecuted, convicted and sentenced to life imprisonment which sentence he now appeals.

We are alive to the duty of this court, being a first appellate court, to reevaluate the entire evidence on record and come to its own conclusion bearing in mind that it did not see the witness testify. See Kifamunte Henry V 20 Uganda SCCA No. 10 of 1997, Pandya V R (1957) EA 336 and Okeno V Republic [1972] EA 32.

An appropriate sentence is a matter for the discretion of the sentencing Judge. Each case presents its own facts upon which a Judge exercises his discretion. It is the practice that as an appellate Court, this Court will not normally 25 interfere with the discretion of the sentencing Judge unless the sentence is illegal or unless Court is satisfied that the sentence imposed by the trial Judge was manifestly so excessive as to amount to an injustice. See Kyalimpa

Day

Edward V Uganda, Criminal Appeal No.10 of 1995 and Ogala s/o $\mathsf{S}$ Owoura V R (1954) 21 EACA 270.

$\mathcal{L} = \mathcal{L}$

While resentencing the appellant, the trial Judge stated that he had considered the behaviour of the convict while in custody and other mitigating factors. The dastardly way in which the offence was committed as narrated in

the aggravating circumstances which he found to outweigh the factors in 10 mitigation. In the result he sentenced the convict to imprisonment for the rest of his life.

Counsel for the appellant submitted that regarding the circumstances of this case and the mitigating factors namely the appellant was 23 years at the time of commission of the offence, he has been in prison for about 16 years, was remorseful and a first offender, this Court should acquit him.

In Mbunya Godfrey V Uganda, Supreme Court Criminal Appeal No.4 of **2011,** the appellant had been convicted of murder of his wife. The Supreme Court set aside the death sentence and imposed a sentence of 25 years imprisonment.

In Atuku Margret Opii V Uganda, Court of Appeal Criminal Appeal No. 123 of 2008, this Court reduced the sentence from death to 20 years imprisonment. In that case the appellant had killed a neighbour's 12 year old daughter by drowning.

Section 11 of the Judicature Act, Cap 13 grants this Court the same 25 powers as the Court of original jurisdiction including power to impose a fresh sentence.

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We have taken into account the fact that the appellant was a first offender, $\mathsf{S}$ and was only 23 years at the time and ought to be given an opportunity to reform. We find that the sentence of life imprisonment was manifestly harsh and excessive and set it aside and impose a sentence of 27 years imprisonment. Since the appellant spent 2 years on remand, he shall now serve a term of 25 years imprisonment commencing from 13^th August, 2004 10 when he was convicted.

# We so order

| Dated at Mbarara this | day of $C_{19}$ bey 2018 | |-----------------------|--------------------------| | | |

**JUSTICE OF APPEAL**

HON. LADY JUSTICE ELIZABETH MUSOKE

HON. JUSTICE BARISHAKI CHEBORION

**JUSTICE OF APPEAL**

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HON. JUSTICE CHRISTOPHER IZAMA MADRAMA

**JUSTICE OF APPEAL**

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