[2014] UGHCCRD 98
The court held that, following the Supreme Court's decision in Attorney General v. Susan Kigula & 417 others, the mandatory death penalty for murder is unconstitutional and each case must be considered on its own merits with regard to mitigating factors. In this case, the convicts were first offenders, the victim...
Source-derived case information.
- Citation
- [2014] UGHCCRD 98
- Parties
- Applicant: Uganda; Respondent: Yuda Atiku; Respondent: Banura David
- Court
- HC: Criminal Division (Uganda)
- Jurisdiction
- Uganda
- Case Number
- High Court Criminal Session Case No.155 of 2014
- Procedural Posture
- Criminal Session / Mitigation and Re Sentencing
- Outcome
- Convicts sentenced to 10 years' imprisonment each, deemed served; immediate release ordered; compensation to victim ordered.
- Judges
- Murangira, J
- Legal Topics
- Sentencing Guidelines, Mitigation of Sentence, Murder, Compensation to Victim
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Uganda
Applicant
Yuda Atiku
Respondent
Banura David
Respondent
Procedural Posture
Criminal Session / Mitigation and Re Sentencing
Legal Issues
- 1 Whether the mandatory death penalty previously imposed on the convicts should be substituted with a mitigated sentence in light of the Supreme Court decision in Attorney General v. Susan Kigula & 417 others.
- 2 What is the appropriate sentence for the convicts considering the facts, mitigating factors, and time spent on remand.
- 3 Whether compensation should be awarded to the victim for loss suffered.
Ratio Decidendi
The court held that, following the Supreme Court's decision in Attorney General v. Susan Kigula & 417 others, the mandatory death penalty for murder is unconstitutional and each case must be considered on its own merits with regard to mitigating factors. In this case, the convicts were first offenders, the victim survived and recovered from her injuries, and the convicts had already spent four years on remand. The facts did not place the case in the 'rarest of the rare' category warranting the maximum sentence. The court therefore imposed a sentence of 10 years' imprisonment for each convict, deducting the period already served, and ordered their immediate release unless held on other...
Court Disposition
Convicts sentenced to 10 years' imprisonment each, deemed served; immediate release ordered; compensation to victim ordered.
Orders
- Yuda Atiku is sentenced to 10 years' imprisonment from the date of conviction, deemed served; to be released unless held on other lawful charges.
- Banura David is sentenced to 10 years' imprisonment from the date of conviction, deemed served; to be released unless held on other lawful charges.
Full Case Text
Judgment text and source record
28 paragraphs
**THE REPUBLIC OF UGANDA**
**IN THE HIGH COURT OF UGANDA AT KAMPALA**
**HIGH COURT CRIMINAL SESSION CASE NO.155 OF 2014**
**(arising from HCT – Crim. No. 22 of 2004)**
**UGANDA ::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::PROSECUTION**
**VERSUS**
1. **YUDA ATIKU** 2. **BANURA DAVID :::::::::::::::::::::::::::::::::::::::::::::::::CONVICTS**
**RULING BY HON. MR. JUSTICE JOSEPH MURANGIRA**
**1. Introduction**
**1.1** This matter was placed before me in a mitigation and re-sentencing session for sentencing the convicts. It should be noted that I was not the trial Judge in this case that involved the convicts. The trial Judge was Hon. Mr. Justice Lameck N. Mukasa. The convicts were tried, convicted and sentenced to death by the aforestated Judge.
**1.2** The convicts came before the High Court for sentencing pursuant to the decision of the Supreme Court of Uganda in Attorney General-vs-Susan Kigula & 417 others, constitutional Petition appeal No. 3 of 2006, which found that the previous mandatory death penalty regime was unconstitutional. Each convict who was subject to the automatic death sentence and not yet exhausted the appeal process was remitted to the High Court for mitigation and sentence, which was confirmed by the subsequent case of Ambaa Jacob & Another –vs-Uganda, Criminal Appeal No. 10 of 2009.
**1.3** The prosecution is represented by the Directorate of Public Prosecutions. This matter was argued by Ms. Nalwanga Sherifah, State Attorney. Whereas, the convicts are represented by Mr. Senkezi Stephen of Senkezi, Saali Advocates & Consultants.
Both Counsel for the parties ably presented their mitigating factors in their submissions.
**2. Sentencing the convicts.**
**2.1** In sentencing the convicts the following factors/reasons are considered:-
1. The cases of Attorney General-vs- Susan Kigula & 417 others (Supra) and Tigo Stephen –vs- Uganda Criminal Appeal No.8 of 2009. 2. All the mitigating factors submitted by both Counsel for the parties, which are on Court record. 3. The Constitutional (Sentencing Guidelines for Courts of Judicature) (Practice) Directions, Legal Notice No.8 of 2013 particularly part 1 of the 3rd schedule. 4. For special emphasis, I have also considered the following factors:- 5. The convicts were convicted of murder, an offence that carries a maximum sentence of death. 6. From the facts of the case and the submissions by Counsel, though the victim was bluttally assaulted, she never died. She was admitted in Hospital, treated and recovered from the assault wounds. The facts of the case do not put this case in the rarest of the rare cases. 7. The convicts stole from the victims shs.400,000/= and property valued at Shs. 800,000/=. 8. The convicts are first offenders. 9. I have also considered the prison’s report, social inquiry report and the pre-sentence reports in respect of each convict and I have no doubt that the convicts have the capacity to reform. 10. Each convict spent about 4 years on remand before conviction, which period is taken into account in sentencing the convicts.
In the result and for the reasons given hereinabove in this ruling, I would have sentenced each convict to 14 (fourteen) years imprisonment, but I do deduct the period of 4 years each convict spent on remand. I therefore, sentence:-
1. Yuda Atiku to 10 years imprisonment from the date of conviction. 2. Banura David to 10 years imprisonment from the date of conviction.
Considering the days each convict would have got on remission of sentence, I order that each convict has already served the sentence. They should be released from custody hence with. Unless they are held on other lawful charges.
Dated at Kampala this 16th day of July, 2014.
**……………………………………….**
**Joseph Murangira**
**Judge.**
**Court:** Pursuant to Section 286 (4) of the Penal Code Act, Cap 120 Laws of Uganda, each convict is ordered to pay Shs. 1,000,000/= (one million shillings) only to the victim of crime as compensation for the loss suffered, within 30 days from today. This order shall be extracted by Counsel for the State and served on the victim’s next of keen within 14 days from today for execution purposes under the Civil Procedure Rules, S. I. 71-1.
Dated at Kampala this 16th day of July, 2014.
**……………………………………….**
**Joseph Murangira**
**Judge.**