[2024] UGCA 175

# THE REPUBLIC OF UGANDA IN THE COURT OF APPEAL OF UGANDA AT MASAKA CRIMINAL APPEAL NO. 206 OF 2016

(Coram: Hellen Obura, Muzamiru Kibeedi & Moses Kazibwe JJA)

#### TINDYEBWA ERIC:::::: ::APPELLANT

### **VERSUS**

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

(An appeal from the decision of the High Court at Masaka before Hon. Justice John Eudes Keiterima, J dated 30^th June, 2016 in Criminal Session Case No. 004 of 2016)

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## JUDGMENT OF THE COURT

## Introduction

This appeal arises from the decision of the High Court sitting at Masaka delivered on 30^th June, 2016 by Keiterima, J in which the appellant was convicted, on his own plea, of the offence of aggravated defilement contrary to section 129 (3) & (4) (a) (d) of the Penal Code Act and sentenced to 15 years' imprisonment.

The facts giving rise to this appeal as ascertained from the court record are that on 18/08/2015, while N. A (the victim) was looking after her father's cattle, the appellant attacked her with a knife. He grabbed her, put her on the ground, forcefully removed her knicker and had sexual intercourse with her. He put the knife on her neck and caught her mouth. During the incident, a one Kofiriyo Godfrey who was nearby heard a voice of a child crying within his vicinity and he came and found the appellant on top of the victim. Consequently, the appellant was arrested on that day and taken to Kaikolongo Police Post. He was found wearing a trouser stained with blood on its fly and the victim's torn knicker was also recovered. The appellant was charged with the offence of aggravated defilement and was convicted and


sentenced as aforementioned. Being dissatisfied by the sentence passed by the learned trial $\mathsf{S}$ Judge, he has appealed to this Court on one ground that:

> "The learned trial Judge erred in law and fact when he failed to offset the period spent on remand thereby passing an illegal sentence occasioning a miscarriage of justice."

At the hearing of this appeal, Counsel Mbalire Muhammed represented the appellant on State Brief while Caroline Marion Acio, Chief State Attorney and Nasazzi Mauritia Sharon, State Attorney appeared for the respondent. Appellant in Court. Counsel for the appellant sought leave to proceed against sentence only which was granted.

Counsel submitted that failure by the learned trial Judge to make a deduction of the period spent on remand made the sentence illegal. He argued that the court record reveals that in arriving at the sentence of 15 years, court did not deduct the period the appellant had spent on remand. Counsel added that it is now settled law that the requirement for arithmetical deduction of the time the convict spent on remand from the sentence imposed by the sentencing court predates as far as 8^th October, 1995 at the promulgation of the Constitution of Uganda 1995. He relied on the decision in **Kajooba Vesencia vs Uganda, Criminal Appeal No. 0118 of 2014**, to buttress his submission.

He added that although the appellant in the instant appeal was sentenced on 29th day of April, 2016, he is a beneficiary of the new sentencing regime given the fact that this Court has since adopted the ratio decidendi in **Kajooba Vesencia vs Uganda** (supra) in its recent decision of *Muhumuza Wilson vs Uganda*, CACA No. 285 of 2015.

25 Counsel prayed that this Court be persuaded by the appellant's legal arguments, law and authorities cited and finds that the sentence imposed on the appellant was illegal since the learned trial Judge failed to make an arithmetic deduction of the period of 11 months and 12 days which the appellant spent on remand. He further prayed that the sentence be substituted with an appropriate one.

- $\mathsf{S}$ In response, counsel for the respondent submitted that the sentence of 15 years that was imposed on the appellant is legal. He disagreed with the appellant's claims and contended that the learned trial Judge took into consideration the period the appellant had spent on remand before imposing the sentence of 15 years as required by the law. - Counsel submitted that the learned trial Judge was bound by the legal regime in **Kizito** Senkula vs Uganda SCCA No. 24 of 2001 when he delivered his sentence on 30th June 10 2016. Further that the decision in *Kizito Senkula vs Uganda* (supra) was followed until 3^rd March 2017 when it was overturned by **Rwabugande Moses vs Uganda SCCA No. 25 of** 2014. He also referred to the Supreme Court decision in Abelle Asuman vs Uganda, SCCA No. 66 of 2016 in which the court held that the Court of Appeal could not have followed the precedent in Rwabugande Moses vs Uganda (supra) because it did not exist at the time 15 they delivered their Judgment. They further clarified that the decision in that case could not bind courts for cases decided before the 3^rd March, 2017.

Regarding uniformity of sentence, counsel submitted that this sentence is consistent with several sentences imposed in cases of a similar nature. He referred to Ntambala Fred vs

Uganda, SCCA No.34 of 2015, Anguyo Silva vs Uganda CACA No. 038 of 2014 and 20 **Magoro Hussein vs Uganda, CACA No. 261 & 305 of 2018** to support his submissions.

In conclusion, counsel submitted that the sentence passed by the learned trial Judge is not illegal, harsh or excessive and that the learned trial Judge did neither overlooked the law nor failed to consider any material factor but did consider the period the convict spent on remand after considering both the mitigating and aggravating factors. He prayed that this Court dismisses the appeal and upholds the sentence.

We are aware of our duty as a first appellate court as provided for under rule 30(1) of the Judicature (Court of Appeal Rules) Directions. We are required to re-evaluate the evidence before us and come up with our own conclusion on findings of fact and law. **Also See: Bogere**

## Moses vs Uganda, SCCA No. 1 of 1997 and Kifamunte Henry vs Uganda SCCA No. 10 $\mathsf{S}$ of 1997.

The principles upon which an appellate court may interfere with a sentence passed by the trial court were considered in the decision of Kyalimpa Edward vs Uganda, SCCA No. 10 of 1995. The Court stated as follows;

"An appropriate sentence is a matter for the discretion of the sentencing judge. Each case presents 10 its own facts upon which a judge exercises his discretion. It is the practice that an appellate court, will not normally 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." Also see: Ogalo s/o Owoura vs R (1954) 21 E. A. C. A 126 and R vs Mohamedali Jamal (1948) 15 E. A. C. A 126.

In his submissions, counsel for the appellant stated that the learned trial Judge did not take into account the period of 11 months and 12 days the appellant had spent on remand. Conversely, counsel for the respondent disagreed with this claim and argued that the learned trial Judge considered the period the appellant spent on remand during sentencing.

The Constitution of the Republic of Uganda, 1995 under Article 23 (8) requires courts while 20 sentencing, to take into account the period a convict has spent in lawful custody prior to completion of his or her trial. According to the Supreme Court decision in Rwabugande Moses vs Uganda (supra) failure to do so renders the sentence passed illegal.

We have perused the sentencing proceedings and we note that the learned trial Judge stated as follows at page 7 of the court record;

"I have heard both the aggravating and migrating factors. However, the act calls for a deterrent sentence. I have also considered the period the convict has spent on remand. He will now be sentenced to 15 (fifteen) years imprisonment. He has a right of appeal against the sentence, "Asic)

We must point out that this sentence was passed on 30^th June 2016 during the sentencing $5$ regime of Kizito Senkula vs Uganda (supra): Kabuve Senvawo vs Uganda, SCCA No. 2 of 2002; Katende Ahmed vs Uganda, SCCA No. 6 of 2004 and Bukenya Joseph vs **Uganda, SCCA No. 17 of 2010.** The then sentencing regime did not require the sentencing judicial officer to apply a mathematical formula while taking into account the period a convict 10 spent on remand. In *Kizito Senkula vs Uganda* (supra) the Supreme Court noted that taking into account does not mean an arithmetic exercise.

In the instant case, it is clear that the learned trial Judge took into account the period the appellant spent on remand. It did not have to be an arithmetic deduction as argued by counsel for the appellant. In fact, the Supreme Court after **Rwabugande Moses vs Uganda (supra)** in its 2016 decision in **Abelle Asuman vs Uganda** (supra) clarified that;

"Where a sentencing Court has clearly demonstrated that it has taken into account the period spent on remand to the credit of the convict, the sentence would not be interfered with by the appellate Court only because the sentencing Judge or Justices used different words in their judgment or missed to state that they deducted the period spent on remand. These may be issues of style for which a lower Court would not be faulted when in effect the Court has complied with the Constitutional obligation in Article 23(8) of the Constitution."

Fortified by the above decisions, we do not accept counsel for the appellant's arguments that the period the appellant spent on remand was not taken into consideration during sentencing. It is our finding that the learned trial Judge complied with the sentencing regime of that time and considered the period the appellant spent on remand and for that reason we cannot fault him.

In the result, we find no merit in this sole ground and we accordingly dismiss the appeal.

We so order.

**Dated** at **Masaka** this 16^th day of July 2024. $\mathsf{S}$

Hellen Obura Muzamiru M. Kibeedi<br>JUSTICE OF AT

Moses K. Kazibwe JUSTICE OF APPEAL

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