[2022] UGCA 100

### ⁵ THE REPUBLIC OF UGANDA

## IN THE COURT OF APPEAL OF UGANDA AT MBARARA

## CRIMINAL APPEAL NO. 176 OF 2t)I3

(Coram: Egonda-Ntende, Bamugemereire & Madrama, JJA)

TWESTGYE R0BERT) APPELLANT

### VERSUS

UGANDA} RESPONDENT

(Appeal from the decision ol the High Court of Uganda at Rukunkiri in Criminal Session Case No 20 of 2013 belore Murangira, J delivered on 6th December,2013)

JUDGMENT OF COURT

The Appeltant and Ampwera Julius Karuma were indicted for the offence of Murder conlrary to section 188 and 189 of the PenaI Code Act, Cap. I20 laws of Uganda and Aggravated Robbery contrary to section 285 and 286(2) ol the PENAL Code Act.

- It was alteged that the Appetlant and Ampwera Julius Karuma on 12rh November, 2009 at Katojo Trading Centre in Kanungu District murdered Bimbona Atex and robbed him of money, shop items and 6 mobite phones. They shot the deceased who died instantly and wounded the deceased's nephew who managed to escape with injuries. The incident was reported 20 - to the po[ice who arrested the Appettant and paraded him with others in an identification parade. The deceased's widow identified the Appettant as the assa ila nt. 25

The Appettant was tried and convicted on both counts as indicted while A2, Ampwera Julius Karuma, was acquitted and set free.

Upon conviction the Appettant was sentenced to 60 years' imprisonment on count one and l5 years' imprisonment on count two. Both sentences were set to run concurrently. 30

The Appettant was dissatisfied with the decision of the High Courl, and appealed against his conviction and sentence on the following grounds:

- The [earned triat Judge erred in law and fact to convict the Appettant of the offence of murder when the ingredient of participation had not been proved. - 2. The learned triaI Judge erred in law and facl to convict Appettant of the offence of Aggravated Robbery when ingredient of theft had not been proved. the the - 3. The learned triat Judge erred in [aw and fact to sentence the Appettant to (an) ittegat sentences of 60 years' imprisonment and l5 years' imprisonment without considering the period spent on remand. - 4. The learned triatJudge erred in fact to sentence the Appe[[ant to 60 years'imprisonment which was a harsh sentence. - 20 The Appettant prays for the appeal to be atlowed so that his conviction is set aside or in the alternative, the sentence of 60 years' imprisonment for murder is set aside and an appropriate sentence imposed.

# Representation

25 At the hearing of the appea[, [earned counseI Ms Kentaro Specioza on state brief represented the appettant while learned counseI Mr. 0o[a Sam, Senior Assistanl Director of Pubtic Prosecutions represented the respondent. The appettant appeared via video [ink from Mbarara Main Prison. With teave, the counse[ of the parlies addressed court in written submissions and judgment was reserved on notice.

- 30 Submissions of Counsel - l. The learned triat Judge erred in law Appellant of the offence of murder participation had not been proved. and fact to convict the when the ingredient of

The appetlants counseI submitted that according to prosecution evidence, PWI Kyarikunda Ruth was at the scene when the offences were committed. She testified that before the incident she had never seen the assaitants in the viltage. According to her, the thieves entered the house 35

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⁵ when she was in the bedroom. The accused had torches and when they could flash, they woutd ftash in her face, Counsel contended that when a ftash is directed at the face, it is hard to see the person who ftashed. PWI stated that there was no buIb in the bedroom and therefore she relied on the ftashtight to identify the assaitants. Counse[ submitted that it was not possibte for PWI to identify the assailants using onty the ftashtight. 10

Further PWI testified that she identified the two accused persons because they were the ones hitting her with sticks and are kept raising her eyes and tooking at them. However, there was no tight in the room and the ftashtight was flashing in the witnesses face and there was no

way she could have property identified the assaitants. CounseI contended that if the witness never identified the accused properly during the commission of the offence, then the identification at the potice was mere guesswork. ln the premises, the appeltant's counsel submitted that the surrounding circumstances did not atlow for proper identification of the appettant and ground I of the appeaI ought to succeed. 15 20

ln repty to ground l, the respondents counsel admitted that PWI was ^a singte identifying witness. 0n the [aw regarding identification, the respondents counseI retied on Bogere Moses and Another v Uganda; Supreme Court Criminat Appeal No I of 1997 for the principtes appticabte

- in dealing with the evidence of identification by eyewitnesses in criminal matters. These principles are that (1) the court ought to satisfy itself from the evidence whether conditions under which the identification was claimed to have been made were not difficutt and caution itself on the possibitity of mistaken identity. (2) the court shou[d proceed to evatuate 25 - the evidence cautious[y so that it does not convict or uphold the conviction, unless it is satisfied that mistaken identity is ruled out. (3) the court must consider the evidence as a whole, namety the evidence, if any, of factors favouring correcl identification together with those rendering it difficutt. (4) the evidence shou[d be weighed in retation to the rest of the evide nce. 30

The respondent's counseI submitted that the learned triatjudge was alive to the Iaw on identification and particutarty by a singte identifying witness in his anatysis of the testimony of PW'I. He agreed with the anatysis and stated that there was no evidence that torches were flashed in the face

⁵ of PWI for the entire duration of the incident. ln fact, PW1 kept raising her eyes at her assailants and in cross examination gave the conditions of the identification which was that there was no tight in the house but the assailants had torches. She first identified 41 when she was coming from the bedroom, the robbers shot the deceased and he fetl down in her bedroom. She was terrified by the shooting and she could see the accused persons very wel[. The robbery and att the scuffte took about 30 minutes and even when she was looking for the monies they were demanding she saw them very wett that night. 10

The respondents counseI contended that the appe[[ant's counseI only selectively picked pieces of evidence to argue that PWl did not property identify the assai[ants. He submitted that the evidence shou[d be considered as a whole. ln addition, he submitted that PW'l identified the appettant at an identification parade organised by PW 6. There was nothing in the evidence of PW'l and PW6 to show that the identification of the appe[[ant was through guesswork. PW] was emphatic that she saw 15 20

- the appettant at the scene and could identify him if she met him anywhere. The evidence of PW6 is corroborated by the evidence of PWI to the effect that she identified the appettant at the identification parade. Further exhibit P EX 3 which is the identif ication parade report corroborates the evidence of PWl. He submitted that there was ample evidence to prove identification of the appettant at the scene as the participant in the murder of the deceased. ln the premises the respondents counsel submitted that the triat judge cannot be faulted on the question of identification of the appettant and ground one of the appeat ought to fait. 25 30 - 2. The learned trial Judge erred in ]aw and fact to convict Appetlant of the offence of Aggravated Robbery when ingredient of theft had not been proved. the the

The appettants counset submitted that PWI testified that she gave the assailants shittings 600,000/= and that the appellants further stote ⁵ mobile phones. Further the witness testified that she was told by the police at Kanungu that there were some people who were arrested with their phones and that the documents concerning the phones were given to the potice to trace the phones. The appettants counsel submitted that 35

⁵ it was not surprising that no recovered phones were tendered in court as an exhibit. Secondly the atleged documents concerning the funds were not tende red in court.

Further the appettants counseI submitted that PWI testified that they had never recovered any of lhe stolen properties. She contended that if the police recovered the phones, the atleged phones were never handed back to the owners and were not lendered in court, neither were their documents tendered in court, then where does the prosecution derive proof that the phones were actualty sto[en? 10

The appettants counsel further argued that there is no evidence on record to prove that money was actua[y stoten. PWI further stated that she gave the robbers shittings 600,000/=. ln cross examination, she testified that she just picked the money and gave it to the robbers and she had not counted it. 15

Further, PW'l testified that the robbers sto[e 7 crates of beer, 5 boxes of the chief waragi,3 boxes of coffee and a suitcase of clothes.0n the other hand, PW2 Mr Byaruhanga Kenneth testified that on the fottowing day, the recovered ctothes and some papers and some sachets of a chief waragi. CounseI submitted that the atleged recovered items were not tendered in court as exhibits and there is no sufficient evidence before court to prove that they are was any theft. She prayed that ground 2 of the appeat ^also succe eds. 20 25

ln reply, on the question of whether the ingredient of theft had been proved, the respondents counseI submitted that at the triat, counseI for the appettant rightly conceded that the prosecution had proved theft of property of the complainant or the deceased. The triat judge correctty found at page 5 of the judgment that PWI gave detailed account of how the offences were committed. She enumerated the properties that were sto[en. She conctuded her evidence in chief by saying that she had not recovered any of the stoten properties and the evidence on record is

clear. Further, the respondents counse[ submitted that the evidence of PWI concerning the sto[en properties was not controverted. He submitted that even if any of the stoten properties had been recovered and not produced in court as exhibits, such omission wou[d not be fataI to the prosecution case. The avaitabte evidence was more than sufficient to prove the ingredient of theft of the property of Bimbona Atex. ln the 35 40

- ⁵ premises he prayed that we f ind ground 2 of the appeat devoid of merit and dismiss it. - 3. The learned trial Judge erred in law and fact to sentence the Appetlant to ittegat sentences of 60 years' imprisonment and ¹⁵ years' imprisonment without considering the period spent on remand.

The appettant's counseI submitted that the learned trlal judge did not consider the period the appettant had spent on remand. According to the sentencing notes, the triatjudge considered the mitigating factors which were advanced by counset for the state. Considering the statements made by the learned triatjudge, he did not consider the mitigating factors advanced by counse[ for the accused. According to the mitigating factors in the sentencing notes as submitted by counseIfor the state, the period the appettant had spent on remand was not indicated. CounseI relied on articte 23 (8) of the Constitution of the Repubtic of Uganda and submitted

that the sentence was un[awfu[ (see Rwabugande Moses versus Uganda; Supreme Court Criminal Appeal No 25 of 2014 tor the proposition that ^a sentence arrived at without considering the period spent on remand is an ittegal sentence." 20

Counset submitted that the learned triat judge passed sentence without considering the period spent on remand and ground 3 of the appeat shou[d be a[[owed. She further prayed that this court invokes section ll of the Judicature Act to impose its own sentence. 25

ln repty to ground 3 of the appea[, the respondent's counse[ conceded to ground 3 of the appeaI on the authority of Rwabugande Moses yersus

Uganda; Supreme Court Criminal Appeat No 25 of 2014 that a sentence arrived at without taking into consideration the period spent on remand is iltegatfor faiting to comp[y with articte 23 (8) of the Constitution of the Repubtic of Uganda. 30

The respondent having conceded that the learned triat judge did not take into account the period the appetlant spent on remand prior to his conviction and sentence, there is no need for us to consider ground 4 of the appeat which is to the effect that the sentence of 60 years' imprisonment is a harsh sentence. 35

#### ⁵ Resolution of appeat

We have caref ully considered the Appettant's appeat, the written submissions of Counse[ that we have set out above, the authorities referred to, and the appticabte law genera[[y.

This appeatarises from a decision ofthe High Court acting in the exercise of its original jurisdiction and is a first appeat. ln an appeaI of first instance, the court has discretion in matters of factuaI controversy to reappraise the evidence contained in the printed record of proceedings by subjecting that evidence to fresh scrutiny and arriving at its own inferences on matters of fact hearing in mind it has neither heard not seen the witnesses testify unlike the triaI judge. Therefore, and except on justifiabte grounds, we ought to defer to the conclusions of the judge on matters of credibility of witnesses whenever it is in issue (See Pandya v R [1957] EA 336, Selle and Another v Associated Motor Boat Company [1968] EA 123, as we[[ as Kifamunte Henry v Uganda; SCCA No. l0 of 1997). 10 15

- The duty of this court in reappraisat of evidence is enabled by rute 30(l)(a) of the Judicature (Court of Appeat Rules) Directions, S.l No. 13-10, which provides that on appeal from the decision of the High Court in the exercise of its original jurisdiction, the court may reappraise the evidence and draw inferences of fact. 20 - Ground'l of the appeat is on the issue of whether the learned triat judge reached the correct decision in finding that the appettant was property identified by a single identifying witness. Ground 2 on the other hand is about whether, the ingredient of theft was proved on the issue of whether robbery was proved. Ground 3 of the appeat was conceded to by the respondent on the ground that the learned triat judge did not take into 25 30 - account the period that the appet[ant had spent on pre-triaI detention prior to the compIetion of his triaI contrary to articte 23 (8) of the Constitution of the Repubtic of Uganda.

Ground l

The learned triat judge erred in [aw and fact to convict the appeltant of the offence of murder when the ingredient of participation not been proved. 35

⁵ The main issue retating to participation of the appetlant is whether he was identified and put at the scene of the crime. The taw on identification was set out by the Supreme Court in Uganda v George Wilson Simbwa; Supreme Court Criminat Appeal No 37 of 1995 where the Supreme Court noted that the law regarding identification by a single witness is we[[ settled and has been stated in numerous decisions cited in that case. These decisions inter af'a include Abdata Bin Wendo and Another v ^R (1953) 20 EACA 156; Roria v R 0967) E. A. 583 and Abduta Nabulere and ² Others v Uganda: Criminal Appeat No 12 of 1981. ln Uganda v Simbwa (supra) the Supreme Court summarised the [aw and procedure as ^fo 1[ows: 10 t5

Briefly, the [aw is that although identification of an accused person can be proved by the testimony of a singte wilness, this does not lessen lhe need for testing with the greatest care the evidence of such a witness regarding identification, especiatty when conditions favouring correct identification are difficutt. Circumstances to be taken into account include the presence and nature of lighl; whether the accused person is known to the wilness before the incident or not; the tength of time and opportunity the witness had to see the accused; the distance between them. Where conditions are unfavourabte for correct identification, what is needed is other evidence pointing to guitt from which it can be reasonably conctuded that the evidence of identification can safety be accepted as free from possibitity of error. The true test is not whether the evid ence of such a witness is reliabte. The witness may be truthfuI and this evidence apparentty reliabte and yet there is stit[ the risk of an honest mistake particutarty in identitication. The true test is that taid down by the cases above referred to which, briefty, is whether the evidence can be accepted as free from the possibitity of error. ln the case of Abdata Nabutere (supra) the Court of AppeaI for Uganda put it this way:

Where the case against an accused depends wholly or substantialty on the correctness of one or more identifications ol the accused, which the defence disputes, the judge shoutd warn himsetf and the assessors ol the specialneed for caution before convicting accused in retiance on lhe correcl identification or identifications. The reason for the special caution is that there is ^a possibitity that a mistaken witness can be a convincing one, that even ^a number of such witnesses can atl be mislaken. The judge shatl then examine ctosely the circumstances the identification came to be made, particutarty the tength of time, the distance, the tight, the famitiarity of the witness with lhe accused. Atl these factors go to the quatity of the identification evidence. lf the quatity is good the danger of a mistaken identity is reduced, but the poorer the quatity the greater the danger.

$5$ The single identifying witness in this appeal is PW1 Ruth Kyarikunda a businesswoman and a widow of the deceased. She stated that on 12^th November 2009 at around 10 PM she told her husband that since the customers had gone, she would go and sleep. She had a bar and was selling beer and left her husband in the bar and went to sleep in the room near the bar area. As she reached the bedroom, her husband (the 10 deceased) pulled the outdoor to close it and then thieves who had a big stone hit his head with it whereupon he screamed and rushed to the bedroom. The thieves shot at him and he fell into their bedroom. She saw 6 holes in the door, so there were 6 bullets. Particularly in relation to the identification the witness testified as follows: 15

> Then the thieves came, got me from the bedroom and took me to the shop/bar where they ordered me to give them money.

There were 4 people, 3 were inside the bar/shop and one was outside. One had a piece of wood shaped like a panga, the other hand a piece of wood shaped like a baton which he was using to beat me, the 3^rd one had a gun, which he was using to hit me to bring money. The 4^th one who was outside had covered himself with a hat I could not see him properly. I got shillings 600,000/= and gave it to them. After getting money from me they took me to where my husband was and ordered me to lie down besides my husband. The 3 robbers, all of them kept jumping us 3 times. After that they went to the shop and took other shop items.

- 7 crates of beer. - 5 boxes chief waragi. $\mathcal{L}_{\mathcal{L}}$ - Boxes of coffee waraqi. - A suitcase of our clothes

They also took money from the drawer which had not yet counted on that evening during the time of the attack, identified these two accused persons because they were the ones hitting me with stick and I kept raising my eyes and gazing at them. The other one with a gun had covered himself on the face and mouth. I could not recognise him.

The accused had torches, and when coutd flash, he woutd ftash one in the face. lsaw them when they entered in the house they broke the butb. ln the bedroom there was no [ight.

The [earned triat judge considered the question of whether the two accused persons did not participate in the commission of any of the two offences with which they were charged. She also considered the fact that PWI identified the accused persons among the attackers. She managed to identify the appetlant at the scene of crime. He noted that the accused persons beat her and had torches which they were ftashing al[ over the r00m.

That the accused persons beat her and they had torches which they were flashing a[[ over in the room. This witness maintained her testimony even in cross examination how she came to identify the accused persons. 0n this piece of evidence counsel for the accused submitted that from the circumstances that pertained in the bar/shop PWl never identif ied the atlackers. The issue of identification had been settled in a number of cases, in the case of Abudalta Nabulere and 0thers v Uganda [1979] HCB 77... 15 20

ln the instant case, PWI gave evidence that she took tong with the attackers in the bar/shop who were demanding for money. The attackers in the said room had torches they were ftashing assisting her to get them money where she was keeping it within the bar/shop. With that tight from the ftashing torches PWI was able to see where her money of the day's sates from the drawer and the money she had kept in a potythene bag and hidden among the sacks of goods within the shop.

> Second, the attackers with the use of the tight from the torches were ab[e to co[[ect alI the items they stote from the bar/shop. ln that regard, I find that there was enough tight in the said room from the ftashing torches which within that tong time PWI was with the attackers; she was able to identify her attackers. Again from her evidence, the room of the bar/shop was a sma[[ area, which proves her evidence that she was close to her attackers as the continuously demanded money from her. That short distance from

> > 10

her and her attackers, coupled with the flashing light from the torches, I am convinced that PW1 was able to identify some of her attackers.

We have carefully considered the evidence of the prosecution witness PW1 coupled with the identification parade in which the appellant was identified as one of the assailants by PW1. PW1 was cross examined on 10 the issue of whether she saw the appellant. She insisted that she saw the accused person. No dent was made into her testimony as far as her identification of the appellant is concerned.

We have carefully considered the doctrine and the evidence on identification. Identification of the suspect can be proved through 15 testimony of a single witness. Where there is the testimony of a single identifying witness, that evidence should be treated with the greatest care and the judge should caution himself and the assessors of the need for care in admitting and accepting the testimony of a single identifying witness. In such cases the issue is whether the evidence is free of the 20 possibility of error. This is established or tested by inter alia careful examination of the circumstances surrounding the identification or the conditions favouring correct identification which include:

- the quality of the light for visibility. - 25

$\mathsf{S}$

- The distance between the witness and the accused at the time of identification.

- The duration of time the witness had to identify or the opportunities to identify that arose in the circumstances at the time of commission of the offence.

We have accordingly carefully considered the circumstances. The 30 offence took place at night at around 10 PM. PW1 saw the thieves come in, hit her husband with a stone and shoot him whereupon he fell into the bedroom where she had just gone. The thieves came and got her from the bedroom and took her to the shop/bar which was adjacent. She was

ordered around. She was able to tell that there were 4 people and one 35 was outside. 3 of the assailants were inside. One had the wood shaped like a panga. Another hard wood shaped like a baton which he used to beat her. She did not properly see the assailant who was outside as he

- ⁵ covered his head with a hat. She got shittings 600,000 and gave to the assailants. She was taken to where her husband lay down and was told to Iie besides him. The assailants jumped over them 3 times. The assailants also took money from a drawer. She testified that she identified the 2 peopte because they were hitting her with a stick and she - kept on raising her eyes and gazing at them. The assailants had torches which they kept ftashing around. 0ne had a gun and covered his face and mouth and she coutd not recognise him. She saw them when they broke into the house. ln further testimony she testified that they took a [ong time about 30 minutes. PWI had ampte opportunity and conditions of the 10 - ftashlight to identify some but not a[[ and she indicated whom she could not identify. She saw what they were carrying which is not even in dispute. She did not know the appettant before but was able to pick him from the identif ication parade. 15

The opinion of the assessors who had the opportunity to see and hear the witness testify is that PWI in her testimony by the time of identification had a long time of about 30 minutes in the shop white the appettant was demanding money from her. During the scuffte the attackers had a torch which they kept ftashing in a[t directions in the house and at her and thls attowed PWI to recognise the attackers as tight ^fe[[ on the ir faces. 20 25

The opinion of the assessors is supported by the evidence of the fact that the witness was able to identify the objects that have assailants used to beat her and were carrying. lf she could recognise the objects, it is very tikety with a high probabitity that she was able to see the appet[ant and

recog n ise him later. 30

stated:

We agree with the learned triat judge that the witness PW1 had ampte time and opportunities within which to identify some of the assailants. There were 4 assailants. Secondty they had torches. Thirdty, the opportunities she had included the fact that she handed over money to the assailants and she was beaten. ln other words, there was a short distance between her and her assailants when she was beaten. Particularly it is important that she kept on tooking or gazing at her assailants when the activity of robbery was going on. This is what she

⁵ they atso took money from the drawer which I had not yet counted on that evening during the time of the attack, identified these ² accused persons because they were the one hitting me with stick and I kept raising my eyes and gazing at them. The other one with a gun had covered himsetf on the face and mouth. lcould not recognise him.

She also testified that she saw them when they entered in the house and they broke the bulb. ln the premises, there was opportunity for her to identify some or atl of the assailants. The ones that she did not identify, she stated that she did not identify. Secondty, the testimony of PW6 S. P Turinawe Christopher was that he conducted an identification parade. He got I0 peopte of similar characteristics in terms of co[our and size. He

then invited PWI to come and identify the suspect. When she came, she told them to l't turn their backs and then they shoutd come to their normaI positions. After some time, she identified the appellant. She insisted that

he was the very person who was in her house. She identified one person. The identification parade form was attowed in evidence as exhibit P3. 20

ln the circumstances, we are satisfied that the appeltant was property identified and ground I of the appeat with regard to participation of the appettant has no merit and is hereby disatlowed.

Ground 2 of the appeal: 25

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## The learned triat judge erred in law and fact convict the appellant of the offence of aggravated robbery when the ingredient of theft had not been Proved.

The appellants counseI re[ied on the fact that no exhibits of the stolen property was recovered or exhibited. We find that this ingredient of the offence had no merit. The clear testimony of PWl is that she handed over money to the assaitants on the orders of the assailants who were armed. ln any case we agree with the [earned triatjudge that there was common intention of robbery which was the whole purpose of the exercise of 30

beating harassing and shooting which was c[early narrated by PWl. The element of theft was therefore proven through the testimony of PWI who tisted the items taken by the robbers. Ground 2 of the appeaI has no merit and is hereby disaflowed.

⁵ Upon disatlowing grounds I and 2 of the appeat, the conviction of the appellant for the offence of murder and aggravated robbery contrary to sections 188 & 189 with regard to the murder and section 285 and 286 (2) of the PenaI Code Act with regard to aggravated robbery is uphetd.

Ground 3 of the appea[:

The learned triat judge erred in law and fact to sentence the appeltant to i[[egal sentences of 60 years' imprisonment and l5 years' imprisonment without considering this period spent on remand. 10

The respondent's counseI conceded that the learned triat judge did not consider the period the appetlant spent on remand in viotation of article 23 (8) of the Constitution of the Repubtic of Uganda.

We have considered the sentencing notes of the learned trialjudge who stated as f ollows:

I have considered the mitigating factors advanced by counseI for the parties in mitigation for an appropriate sentence to be passed ^aga inst the co nvict.

Wherefore, in agreement with the factors in mitigation for sentence that have been articutated by counsel for the state, I sentence the convict: on count I of murder to 60 years' imprisonment in prison. 0n count to of aggravated robbery to 15 years' imprisonment in prison.

We have considered the prosecution submission in mitigation and there is no indication of the period the appettant had spent in pre-triaI detention. Secondty, Mr. Bwagi Jonathan for the convict submitted that the convict is onty 38 years otd, had been in custody since 30th of November 2010. Nonethe[ess, the learned triat judge has not demonstrated that he had taken into account the period the appe[[ant had spent from 30th of November 20'10 untit 6th December 2013 when the appettant was convicted and prior to imposing a sentence of 60 years' imprisonment. We atlow ground 3 of the appeal and set aside the sentence for violation of article 23 (8) of the Constitution of the Repubtic of Uganda. 30 35

⁵ Exercising the jurisdiction of this court under section ll of the Judicature Act, we would sentence the appetlant afresh.

We have carefulty considered the authorities on aggravated robbery and murder. The appettants counsel prayed that the court considers the range of sentences in previous decisions to arrive at an appropriate sentence. The appeltants counse[ retied on Atiku v Uganda; Court of Appeat Criminat Appeat No 4l of 2009 where the convict had been sentenced to tife imprisonment. 0n appeat, the Court of Appeat set aside the tife imprisonment sentence and imposed a term of 20 years' imprisonment.

As far as the appetlant's case is concerned, the appettants counse[ submitted that the court shoutd pass a sentence which was appropriate. The appettant is aged 45 years and is advanced in age. He was a first offender and had been in custody since November 2010. From that time the appettant has been in custody, he has repented and is remorsefut. She prayed that the court imposes a sentence of 20 years' imprisonment. 15 20

ln repty the respondent's counseI submitted that after considering both the aggravating and mitigating factors, a sentence of 38 years' imprisonment for murder woutd be appropriate. For aggravated robbery he proposed 30 years'imprisonment as fitting. He relied on Nabongo

lbrahim v Uganda; Court of Appeal Criminal Appeal No 0l8l of 2014 where similar sentences were passed for murder and aggravated robbery. 25

ln Nabongo lbrahim v Uganda; Court of Appeat Criminal Appeat Number 0l8l of 2014 the High Court had convicted the appettant of murder and aggravated robbery.2 persons had been tried and the facts were that on

- 25th June 2010 they robbed the deceased of a motorcycte and immediatety before or immediately after the robbery used a deadly weapon which was a sharp object. Further they had murdered the victim of the robbery. The High Court sentenced the appettants to Iife imprisonment and on appeal against sentence, this court considered the fact that the appettant had 30 - been on remand for a period of 3 years, 3 months and 5 days. They found that a sentence of 38 years' imprisonment for the count of murder and 30 years'imprisonment for aggravated robbery to be appropriate. From that period the court deducted the period of 3 years and 3 months and

⁵ sentenced the appettant to 26 years, 8 months and 25 days for aggravated robbery and 34 years, 8 months and 25 days for the count of murder. The decision is dated 'llth of November 2021.

In Bogere Asiimwe Moses and Senyonga Sunday v Uganda; Supreme Court Criminat Appeal No 39 of 2016 [2018] UGSC (l9th April 2018), the Supreme Court uphetd a sentence of 20 years'imprisonment imposed for aggravated robbery. The Appettants were 22 and 23 years o[d respectively and court noted that there was no violence, no death occurred and some property was recovered. ln Tukamuhebwa David Junior and Mulodo Yubu v Uganda Supreme Court; Criminat Appeal No 59 10

- of 2016 [2018] UGSC 7 (9th Aprit 2018), a sentence of 18 years imprisonment for aggravated robbery was set aside for being in contravention of Artic[e 23 (8) of the Constitution whereupon the Supreme Court imposed ^a sentence of 20 years imprisonment in respect of respect of the offence of aggravated robbery from which the period of 3 years and 7 months the 15 - appettant had spent in lawful custody was deducted whereupon he was sentenced to 16 years and five months from the date of sentence by the High Court. The aggravated robbery was coupled with rape. 20

ln Muchunguzi Benon and Muchunguzi Thomas J v Uganda; Court of Appeal Criminal Appeal No 008 of 2008 [2016] UGCA 54 (26th 0ctober 2016), the Appettants were convicted of aggravated robbery and sentenced to 15 years' imprisonment by the High Court. 0n appeal to the Court of Appeat, this court found no reason to interfere with the sentence of l5 years' imprisonment after reviewing previous authorities. The robbery involved violence in that the victim of the offence had been hacked with a cutlass and had sustained severat injuries on her body. 25 30

ln Naturinda Tamson v Uganda; Supreme Court Criminat Appeat No 025 of 2015 [2017] UGSC 64 (26th April 2017), was a second appeat to the Supreme Court where the Appettant had been sentenced to 16 years' imprisonment for aggravated robbery by the Court of Appeat. The

Appettant had been convicted by the High Court of the offences of rape, defitement and aggravated robbery and had been sentenced to 18 years' imprisonment on each of the counts which sentences were to run concurrentty. Being dissatisfied with the sentence, the Appettants appeated to the Court of Appeat against sentence which sentences were 35

⁵ varied and the Court of Appeat imposed a sentence of 16 years' imprisonment for aggravated robbery. 0n further appeaI to the Supreme Court, the Supreme Court dismissed the appeat against sentence.

With regard to the conviction for murder we have considered the ^fotlowing precedents.

- ln Kasaija v Uganda; Court of Appeat Criminat Appeat No 128 of 2008, [2014] UGCA 47 the Appeltant had been tried and convicted of two counts of murder by the High Court and sentenced to tife imprisonment. 0n appeat to this court against sentence only on the ground that the sentence imposed by the learned triat Judge was harsh and manifestly excessive the appeat was allowed. The Court of Appeal took into account, the mitigating factor that the Appellant was a f irst offender and had spent 10 15 - 21" years on remand prior to his trial and conviction. He was 29 years otd and a relativety young man at the time of commission of the offence. The aggravating factor was that he has committed a very serious offence - leading to the loss of tife in each count being a senseless and bruta[ murder of two suspects atready under arrest and which undermined due process. The appettant was sentenced to l8 years'imprisonment on each count to be served concurrentty from the date of conviction. 20

ln Atiku Lino v Uganda; Criminat Appeat No 0041 of 2009 [2016] UGCA 20 (5thJune 2016), the Appettant used a cut[ass and cut the deceased several times causing her death. His appeal against sentence was allowed and sentence reduced from tife imprisonment to 20 years'imprisonment. The court took into account the mitigating factor that he was a first offender and was only aged 31 years at the time of commission of the offence. 25

- ln Tumwesigye Anthony v Uganda; Court of Appeat Criminal Appeal No 46 ot 2012 [2014] UGCA 61 08th December 2014) the Appettant had been convicted of the offence of murder and sentenced to 32 years' imprisonmenl. His appeaI against the sentence on the ground that it was harsh and manifest[y excessive was a[towed. The Appettant was a first 30 - offender and l9 years otd at the time of commission of the offence. The court set aside the sentence and substituted it with a sentence of 20 years' imprisonment to be served from the date of conviction. 35

- At the time of sentence, the appet[ant was about 38 years otd. However, he had been charged by 30'h of November 20'10 which means that he was about 34 years and 1l months otd at the time he committed the offence. He was in tawf uI custody for 3 years and one month before his conviction and sentence on 6rh November 2013. The appellant has no previous record - of conviction but under the facts and circumstances, he had committed a grave offence in that the victim of the robbery was murdered. Secondty, he was also convicted of murder. Another person was injured and the other victim of the robbery was beaten with sticks and therefore the robbery involved extreme viotence that resulted in the death of the 10 - husband of PWl. Taking into account atl the circumstances and previous precedents we find that a sentence of 30 years' imprisonment would be appropriate for the offence of murder and 18 years' imprisonment for the offence of aggravated robbery. From that perlod, we would deduct the period of 3 years and one month that the appetlant had spent in pre-trial 15 - detention before his conviction and sentence on 6rh December 2013. We accordingty sentence the appetlant to serve 26 years and ll months for the offence of murder and '14 years 'll months for the offence of aggravated robbery. The sentences witt be served concurrently with 20 effect from the date of conviclion and sente nce on 6rh CI,e cember 2013.

Dated at Mbarara the lAlday ot Mpt ^L 2022

drick Eg a - Ntende

Justicq of Appeal

MA

Catherine BamLgemereire

Justice of Appeal

Christopher Madrama

Justice of Appeat