[2025] UGHC 45

### THE REPUBLIC OF UGANDA

## IN THE HIGH COURT OF UGANDA AT KIBOGA

## CRIMINAL CONFIRMATION CASE NO.0011 OF 2024

# (ARISING FROM CRIMINAL CASE NO. 122 OF 2024 OF CHIEF MAGISTRATES **COURT OF KIBOGA AT KYANKWANZI)**

UGANDA:::::::::::::::::::::::::::::::::::

#### **VERSUS**

OLUKA AMISI::::::::::::::::::::: **.....................................**

### BEFORE HON. JUSTICE KAREMANI JAMSON. K

#### **RULING**

## **Introduction**

The accused in this case was charged, convicted and sentenced by a Magistrate Grade One to a term of imprisonment for one year in each of the five offences (counts) of Theft Contrary to Sections 254 and 261 of The-Penal Code Act.

The Magistrate forwarded the file for confirmation of sentences due to the fact that the sentences handed down was one-year imprisonment on each count and they were to run consecutively hence adding up to over two years.

Although the forwarding letter indicates that it was forwarded through the Chief Magistrate, there is no indication that the same was ever forwarded by the Chief magistrate. The same ought to have been forwarded by the Chief Magistrate.

#### **Background**

In count one it was alleged that in month of February 2024 at Katuugo village in the district of Kyankwazi, the accused one Oluka Amisi stole cash shs.420.000= the property of Isiko Joseph.

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In count two it was alleged that in month of February 2024 at Katuugo village in the district of Kyankwazi, the accused one Oluka Amisi stole cash shs.220.000= the property of Ntakirutimana Florence.

In count three it was alleged that in month of February 2024 at Katuugo village in the district of Kyankwazi, the accused one Oluka Amisi stole cash shs. 200.000= the property of Dunsengimana John.

In count four it was alleged that in month of February 2024 at Katuugo village in the district of Kyankwazi, the accused one Oluka Amisi stole cash shs.200.000= the property of Alelimana Oliviyeni.

In count five four it was alleged that in month of February 2024 at Katuugo village in the district of Kyankwazi, the accused one Oluka Amisi stole cash shs. 200.000= the property of Mulocho John

The accused pleaded not guilty to all the offences, was tried and convicted of all the five offences. He was sentenced to a period of imprisonment for one year on each count but the sentences were to run consecutively and hence a total five years to be served.

It was on that basis that the sentence to be served totalled to over two years that the file was forwarded to this court for confirmation.

## **Issue for determination**

Whether the consecutive sentence totalling to five years imprisonment imposed should be confirmed?

## **Resolution**

According to Section 173 (1) of the Magistrate's Act it is provided that where any sentence to which this section applies is imposed by a magistrate other than a magistrate's court presided over chief magistrate, the sentence shall be subject to confirmation by High Court

Subsection 2 of the above section applies to sentence of imprisonment for over two years.

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Section 174 (4) of The Magistrates Act provides that subject to Section 50 (2) of the Criminal Procedure Code Act, the High Court may exercise the same powers in confirmation as are conferred in revision.

A consecutive or cumulative sentence is one which does not begin to run until the expiration of a prior sentence.

It is the court's discretion to decide whether sentences should be served consecutively or concurrently.

Under the **Constitution** (Sentencing Guidelines for Courts of Judicature) (Practice) **Directions, Paragraph 8**, in considering to impose consecutive sentences, the court shall first identify the material part of the conduct giving rise to the commission of the offence and determine the total sentence to be imposed.

That the total sum of the cumulative sentence shall be proportionate to the culpability of the offender.

According to the Supreme Court in the case of Gabiri Kasimu versus Uganda; Criminal Appeal No. 80 of 2018 it was held that consecutive sentences were appropriate given the circumstances and gravity of the offences in the case. That the offences were separate and distinct and that each victim had been deliberately injured with a knife occasioning separate harm and danger.

According to the case of Senteza Mohammed versus Uganda; Court of Appeal Criminal Appeal No. 150 of 2018 (unreported) it was held that the principle whether counts were properly preferred and if properly preferred the consecutive sentences can stand and if they ought to have been in one count then it won't stand.

Further in the case of **Magala Ramathan verses Uganda; Supreme Court Criminal Appeal** No. of of 2014 where the complaint was about the sentence of consecutive instead of concurrent, it was held that according to **Section 2 (2) of Trial Indictment Act** the rule is for the High court to execute sentence and directing sentences to run concurrently is the exception rather than the rule.

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In my own view in passing consecutive sentences what the court has to consider is that when sentencing in more than one offence, court should pass a total sentence which reflects all the offending behaviour in a way that is just and proportionate. The court should avoid double counting where the additional offences are ancillary to the main offence and not independent offences.

In the instant case it was alleged that different amounts of money were stolen from different people in the same month and year at the same place. Since the money belonged to different people it was proper to prefer separate charges.

I have looked at the nature of the offences charged and the sentences passed in this case and I do find no fault in the consecutive/cumulative sentences passed in this case.

The consecutive sentences are confirmed.

However, there is no indication that the time spent on remand was taken into account while passing the sentences.

From the record of proceedings, the accused was first remanded on 11^th April 2024. There is no record of bail application meaning that he remained on remand till sentence on 13^th August 2024. He had therefore spent four $(4)$ months and two $(2)$ days on remand by the time of sentencing.

There is no indication in the sentencing proceedings that period spent on remand was taken into consideration.

According to the case Baluku Fred verses Uganda; Supreme Court Criminal Appeal No.19 of 2017 at **Kampala** it was held that a sentence arrived at without taking into consideration of period spent on remand is illegal for failure to comply with a constitutional mandatory provision in Article 23(8) Of the Constitution.

In the instant case the trial magistrate did not take into account the period spent on remand and hence the sentence is illegal and warrants interference by this court.

The total consecutive sentence passed was five (5) years. I deduct the period spent on remand of four $(4)$ months and two $(2)$ days.

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The convict will now serve an adjusted term of imprisonment for four (4) years seven (7) months and twenty-eight (28) days. This sentence is to run from the date of sentencing by the trial magistrate that is $13/8/2024$ .

I so order.

"Maur"

KAREMANI JAMSON. K

**JUDGE**

10.02.2025