[2022] UGSC 35

# THE REPUBLIC OF UGANDA

### IN THE SUPREME COURT OF UGANDA AT KAMPATA

Co ro m : Owi ny- Dol I o, CJ, Aroch-Am oko, Ti bote mw o- Eki ri ku bi n za, Muhanguzi, Chibito, JJ. S. C

### CRIMINAL APPEAL No. 35 OF 2018

# TATYAMA FRED APPELLANT

#### VERSUS

UGANDA RESPONDENT

10 (Appeol from the decision of the Court of Appeol in Criminol Case No. 107 of 2012 before Kosule, Oburo, Cheborion, IJA doted 27/3/2018)

### JUDGMENT OF THE COURT

This is a second appeal. The appellant herein appealed to this court against the Court of Appeal sentence of 17 years and 4 months' imprisonment for the offence of aggravated defilement contrary to sections 129(3) and 4(a) of the Penal Code Act Cap. 120.

### Brief background.

The appellant was tried and convicted of aggravated defilement contrary to sections 129(3) and 4(a) of the Penal Code Act and sentenced to 20 years'imprisonment.

20 The facts were that on 9th July,2009 at about 20:00 hours, Namayanja Gertrude, the mother of the victim, left the victim B. S, a minor aged 12 years and Mutebi Shakibu, the victim's younger brother in the house and went to attend a funeral nearby. ln the night, the victim was carried out of her bed by the appellant, who put her on the floor and had sexual ²⁵ intercourse with her.

When the appellant was done, he opened the door to the house and by the help of the moonlight, the victim identified the appellant who was wearing his usualover coat. The appellant stepped out ofthe house and before he left, he warned the victim not to reveal anything to anyone. The victim recognised his voice and further identified him.

The victim and her brother stayed awake until morning. When their mother returned home, the victim reported the incident to her and identified the appellant to her. The victim's mother reported the matter to the Local Council authorities who arrested the accused and forwarded

- 35 him to the police. The appellant was tried and convicted as indicted and sentenced to 20 years'imprisonment. He appealed to the Court of Appeal against sentence on the ground that the sentence was illegal because the learned trial Judge failed to consider the period spent on remand by the appellant. - 40 The Court of Appeal sentenced the appellant to 17 years and 4 months upon consideration of 2 years, 9 months and 6 days' period he spent on remand.

Being dissatisfied with the sentence, the appellant appealed to this court on the following ground: -

45 "The learned Justices of Appeal erred in law when they sentenced the appellant to 17 years and 4 months' imprisonment which was manifestly harsh and excessive in total disregard of the mitigating factors."

#### Representation.

50 The appellant was represented by Mr. Henry Kunya who was holding brief for Mr. Albert Mooli on state brief. The respondent was represented by Ms. Caroline Hope Nabaasa, Senior Assistant Director of Public Prosecutions.

# Submissions for the appellant.

55 Counsel for the appellant cited Kifamunte Henry Vs. Uganda, SCCA No. 10 of 1997 and rule 31 of the rules of this court regarding its powers as the second appellate court.

Counsel submitted that the learned justices of appeal failed to consider the appellant's mitigating factors. He pointed out that the appellant was a first offender, had two wives one of whom has since died, had six children, he had shown remorse and was willing to be re-integrated into society. Counsel argued that these factors were not considered by the Court of Appeal Justices while sentencing the appellant and that had they done so, they would have sentenced the appellant to a lesser se nte n ce.

Counsel relied on Magala Ramathan Vs. Uganda, SCCA No. L of 20L4 and Mawazi Mallinga Vs. Uganda, SCCA No. 43 of 2018 for the argument that the appellants'sentences in those cases were reduced after considering all their mitigating factors. He therefore asked court to consider allthe appellant's mitigating factors and substitute his sentence with a lesser sentence.

# Submissions for the respondent.

Counsel for the respondent submitted that the appellant's appeal is misconceived because this being a second appeal, the court can only determine appeals on the illegality of sentence. He cited section 5(3) of the Judicature Act in support of this argument.

Counsel argued that the sentence of 17 years and 4 months' imprisonment is legal and therefore this court had no discretion to interfere with it because the learned justices of appeal considered allthe mitigating factors in favour of the appellant. Counsel prayed that the appeal be dismissed and a sentence of 17 years and 4 months' imprisonment be upheld.

#### Consideration of the appeal.

85 We are aware of the duty of this court in determining appeals as the second appellate court. See: Kifamunte Henry Vs. Uganda, SCCA No. 10 ol L997.

The power of this court to hear and determine criminal appeals against sentence is stipulated under section 5(3) of the Judicature Act Chapter 13 of the laws of Uganda. lt provides as follows: -

90 "ln the case of on appeol ogoinst o sentence ond an order other thon one fixed by low, the occused person moy oppeol to the Supreme Court agoinst the sentence or order, on o matter of law, not including the severity of the sentence."

ln Okello Geoffrey Vs. Uganda, SCCA No. 34 of 2OL4, court stated that:

95 "... Section 5(3) of the Judicoture Act does not allow an oppellant to oppeol to this court on severity of sentence, lt only ollows him or her to oppeol ogoinst sentence only on o motter of low."

ln Abelle Asuman Vs. Uganda, SCCA No. 65 of 2Ot6, court held as follows:

100 "Accordingly, we sholl not consider issues of the sentence being horsh and excessive since thot goes to severity of sentence. The appellont has no right of oppeol on severity of sentence."

From the foregoing, we uphold the above position of the law that the appellant has no right of appeal against severity of sentence under Section 5(3) of the Judicature Act. Consequently, we cannot determine this appeal. It is hereby dismissed for reasons given above.

Dated at Kampala this....................................

OWINY-DOLLO 110

CHIEF JUSTICE

**ARACH-AMOKO**

JUSTICE OF THE SUPREME COURT 115

in batemura

PROF. TIBATEMWA-EKIRIKUBINZA JUSTICE OF THE SUPREME COURT

EZEKIEL MUHANGUZI JUSTICE OF THE SUPREME COURT

**MIKE CHIBITA** JUSTICE OF THE SUPREME COURT

Judgment delivered<br>Régister as dinx $\frac{1}{2}$

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