[2025] UGCA 78

#### THE REPUBLIC OF UGANDA

## IN THE COURT OF APPEAL OF UGANDA AT KAMPALA

*Coram: Mulyagonja, Tibulya & Kazibwe Kawumi, JJA*

## CRIMINAL APPEAL NO. COA-00-CR-CN-0184-2012

**BETWEEN**

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#### WAMIMBI MOSES:::::::::::::::::::::::::::::::::::

## **AND**

### UGANDA:::::::::::::::::::::::::::::::::::

(*An appeal against the decision of Mugamba, J. (as he then was)* delivered on 16^th May 2012 at Mbale in Criminal Session Case No 082 of 2011

## **JUDGMENT OF THE COURT**

### **Introduction**

The appellant was indicted for the offence of aggravated defilement contrary to section 129 $(3)$ and $(4)$ $(a)$ of the Penal Code Act. After a full 15 trial, he was convicted and sentenced to 24 years' imprisonment.

### **Background**

The facts that were accepted by the trial Judge were that on $12^{th}$ January 2011, the appellant accosted a girl aged 8 years, who we shall refer to in this judgment as NP, forcefully carried her to his house and $20$ overnight, forcefully had sexual intercourse with her. The next day NP returned home where her mother observed that she was not walking properly. She proceeded to examine her private parts and upon discovery that something was not right, she reported the matter at the Central Police Station in Mbale.

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The victim was medically examined and found to have been defiled. The appellant was arrested and indicted for the offence which he denied.

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The trial Judge found sufficient evidence to convict him and sentenced him to 24 years' imprisonment. Being dissatisfied with the sentence, he appealed on the following grounds:

- 1. The learned trial judge erred in law and fact when he passed an illegal sentence of 24 years without considering the period spent on remand. - 2. Tlne learned trial Judge erred in law and fact when he passed a manifestly harsh and excessive sentence against the appellant contrary to the principle of consistency in sentencing. - The appellant proposed that the appeal be allowed and the sentence be set aside andf or varied. The respondent opposed the appeal. 10

## Representation

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At the hearing of the appeal on 10th March 2025, the appellant was represented by Ms Faith Luchivya on state brief. The respondent was represented by Mr. John Bosco Kulu Idambi, Assistant Director of Fublic Prosecutions.

Both parties filed written submissions as directed by the court which they, with leave of court, adopted as their final arguments in the appeal. Counsel for the appellant applied to validate the Notice of Appeal which was filed out of time and leave was granted to do so. She further applied for leave to appeal against sentence only and with the consent of counsel for the respondent the prayer was granted.

# Submissions of Counsel

With regard to ground 1, counsel for the appellant referred to Walimbwa

v. Uganda, Court of Appeal Criminal Appeal No. 154 of 2Ot6;l2024l UGCA lg4, where this court considered a situation in which the appellant complained that the trial judge did not deduct the period spent on remand from the sentence that he imposed. She pointed out 25

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that in that case, while sentencing the appellant, the trial Judge stated that "The mitigation therefore will be deducted, and remand of 3 gears deducted, conuict will serue 20 gears' cttstodial sentence. " She further submitted that the trial Judge in the instant case stated that he had "takeninto considerationt?rc approximate 1 '/, years the conuict has been on remand and d.educted that time from the sentence I woild haue imposed."

She further submitted that the two modes of sentencing are the same and in lllalimbwa's case (supra) this court held that where there is a 10 new rule of constitutional interpretation in respect of a penal provision, that new rule should apply to all existing matters that have not been fully resolved, as it was held in Duke Mabeya Gwaka v Atorney General l2023l UGCC 1O4. That the court in that case came to the conclusion that the trial judge did not deduct the period spent on 1s remand (contrary to the rule in Rwabugande Moses v Ugandar SCCA No 24 of 2OL4;2OL7l UGSC 81.

She concluded that what she deduced from the decision in Walimbwa's case was that the trial court was supposed to first sentence the convict and reduce that sentence by the period spent on remand, not the other way round. She prayed that this court invokes its powers under section 11 of the Judicature Act to re-sentence the appellant and then deduct the period of 1 Yz years that he spent on remand.

In reply, Mr. Kulu Idambi for the respondent submitted that there was no miscarriage of justice occasioned to the Appellant. He defined a miscarriage of justice as a 'grossly unfair outcome in a judicial proceeding as when a defendant/ accused person is convicted despite lack of evidence on an essential element of the crime. He also stated that in Black's Law Dictionary Stt Edition, it is termed as "a failure of justice"

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Counsel went on to state that the sentence that was imposed on the appellant was not harsh because the law prescribes a maximum sentence of death for the offence of aggravated defilement. For that reason, he stated that the appellant's sentence was not illegal.

- $\mathsf{S}$ With regard to ground 2, Ms Luchivya submitted that the sentence of 24 years' imprisonment was harsh and excessive, considering the sentences imposed in similar cases. She cited **Draluku v. Uganda,** Criminal Appeal No 626 of 2014; [2024] UGCA 324, where the court observed that one of the principles of sentencing is that sentences must - be consistent. She further referred to **Rugarwana Fred v. Uganda,** 10 **SCCA No 39 of 1996** where the Court upheld a sentence of 15 years imposed on an appellant who defiled a 5-year-old girl. She asserted that the court found and held that the sentencing range for similar cases is between $15$ and $17$ years. - Counsel went on to submit that for consistency to be achieved, there 15 was need for this court to vary the sentence of 24 years and impose one that is consistent with precedents. And that due to the fact that the victim in this case was 8 years old and the girl in **Rugarwana's case** was 5 years old, this court should impose a sentence of 15 years on the appellant. $20$

She further referred to the case of **Ninsiima v. Uganda, Criminal** Appeal No 180 of 2010; [2014] UGCA 65, in which this court relied on the decision in **Kizito Senkula v. Uganda, SCCA No 24 of 2001**, where the Supreme Court sentenced the appellant who defiled an 11-year-old child to 15 years imprisonment. She implored this court to rely on the decision in **Draluku** (supra) which is a recent one, where the appellant was sentenced to 18 years' imprisonment.

In reply, counsel for the respondent presented cases where sentences higher than 24 years' imprisonment had been handed down to

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appellants by this Court and the Supreme Court such as Bashir Buruhuri v Uganda; Criminal Appeal No.25 of 2O15, where a sentence of 40 years' imprisonment was upheld by this court, stating that it was neither harsh no excessive. He also referred to Kafeero Tamale v

- 5 Uganda where a sentence of 27 years' imprisonment was upheld, Kyamufumba Eriab v Uganda; Criminal Appeal No.318 of 2O\O where the Appellant was resentenced to 38 years'imprisonment and Musabuli Sedu v Uganda; CACA No. 11 of 2OlL where this Court upheld a sentence of 25 years'imprisonment imposed by the trial court. - Counsel stated that in the instant case, the sentence of 24 years' imprisonment that was imposed on the Appellant was neither harsh nor excessive in the circumstances. He prayed that this appeal be dismissed. 10

# Analysis and Determination

It is a well-established principle that sentencing is within the discretion of the trial judge. In Kiwalabye Bernard v Uganda (supra) the Supreme Court restated the principle in R v. De Havilland [19831 EWCA Crim JO33O-2, that the appellate court is not to interfere with the sentence imposed by a trial court unless the exercise of its discretion is such that it results in the sentence imposed to be manifestly excessive or so low as to amount to a miscarriage ofjustice, or where the trial court ignores to consider an important matter or circumstance which ought to be considered while passing the sentence, or where the sentence imposed is wrong in principle. We are duty bound to follow these principles in reviewing the sentence that was imposed upon the appellant in this CASC 15 20 25

# Ground ¹

The appellant's complaint in this ground was that the trial judge did not deduct the period that the appellant spent on remand before he

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sentenced him. This would be contrary to the imperative in Article 23 (8) of the Constitution.

In Rwabuganda Moses v. Uganda, SCCA No 25 of 2OL4; l2Ol4 UGSC 8, it was held that in order to demonstrate that the sentencing judge complied with Article 23 (8) of the Constitution, he/she has to deduct the period spent on remand, which is definite and known, from the sentence imposed on a convict. Further that the failure to take the period spent on remand into account results in an illegal sentence.

The Supreme Court in Abelle Asuman v. Uganda, SCCA No 66 of 2OL6; [20181 UGSC 1O, observed that prior to the decision in Rwabugande trial Judges had different methods of demonstrating that they complied with Article 23 (8) of the Constitution. At page 6 of its jtrdgment, the court observed that: 10

into account the period spent on remand to the credit of ttrc conuict, the sentence utould not be interfered with by the appellate Court onlg because the sentencing Judge or Justices used different words in their judgment or missed to state that they deducted the peiod spent on remand. These may be issues of style for uhich a lou;er Court uould not be faulted u-then in effect the Court has complied uith the Constitutional obligation in Article 23(8) of the Constitution".

"Where a sentencing Court has clearly demonstrated that it has taken

While sentencing the appellant in this case on 16th May 2OI2, the trial Judge found and held thus:

"I haue heard what has been said bg the uarious parties regarding the possible sentence to pass on the conuict. At the age of 36 he di.d an act which the then 8-gear-old child will neuer forget. He is a peruert. He is a peruert. (csic) He put the uictim to distress. I agree that consideration needs to be giuen to his dependants. But uhg this sort of person utould do an act like he did and be considered as q responsible person? Cases like this are on the increase and some warning should go out from the police to the society eschetas conduct wherebg small children will be kidnapped and taken to satisfg the selfish needs of social beasts.

I have taken into consideration the approximate $1\frac{1}{2}$ years the convict has been on remand and deducted that time from the sentence I would have imposed. I sentence him to 24 years' imprisonment."

*[Emphasis added]*

While it is true that this court in **Walimbwa's case** (supra) found that 5 the trial Judge, who on the 10^th March 2016, stated that, "The *mitigations will be deducted, and remand of 3 years deducted,*" did not follow the rule that was established in **Rwabugande**, we were unable to follow that precedent. We gave detailed reasons for on similar during the current session decision in **Maberi Simon v Uganda, Court of** $10$ **Appeal Criminal Appeal No 065 of 2010**, were we found and held that this court is still bound by the decisions of the Supreme Court in **Rwabugande** (supra); **Abelle Asuman** (supra) and **Sebunya Robert &** Another v. Uganda, Criminal Appeal No 58 of 2016; [2018] UGSC **73**. In **Sebunya's case**, it was specifically held that: 15

> "Rwabugande does not have any retrospective effect on sentences which were passed before it by courts "taking into account the periods Ja convict] spends in lawful custody". Accordingly, we find no justifiable reason to fault the High Court for passing or the Court of Appeal for confirming the sentences that were imposed on the appellants as those sentences were in conformity with the law that applied at the time the *sentences were passed."*

We find that the learned trial Judge in this case not only observed the law as it stood at the time, but he actually demonstrated that he deducted the period spent on remand from the sentence that he intended to impose. That would, as deduced from the ruling, have been a term of 25 $\frac{1}{2}$ years imprisonment.

Ground one of the appeal therefore fails.

## Ground 2

The complaint in ground 2 was that the learned trial judge failed to 30 observe the principle of consistency in sentencing and therefore, the

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resultant sentence of 24 years' imprisonment he imposed on the appellant was harsh and excessive in the circumstances of this case.

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It is a cardinal rule in sentencing that while sentencing a convict, pursuant to clause 6 (c) of the Constitution (Sentencing Guidelines for the Courts of Judicature) (Practice Directions), 2013, courts have to, among others, take into account the need for consistency with appropriate sentencing levels and other means of dealing with offenders in respect of similar offences committed in similar circumstances.

What amounts to a sentence that is harsh and excessive in the 10 circumstances of a particular case was described by the Supreme Court in Aharikundira Yusitina v. Uganda, SCCA No 27 of 2O15; [2()181 UGSC 49, as follows:

> "There is a highthreshold to be met for an appellate court to interuene with the sentence handed down bA a fial judge on grounds of it being manifestlg excessiue. Sentencing is not a mechanical process but a matter of judicial discretion therefore perfect unifurmitg is hardlg possible. The keg uord is "manifestlg excessiue". An appellate court will onlg interuene tahere the sentence imposed exceeds the permissible range or sentence uaiation.'

20 Therefore, in order to determine whether the sentence handed down was appropriate, we proceeded to consider sentences that have been handed down by the courts for the offence of aggravated defilement.

2s In Oumo Ben alias Ofrvono v. Uganda, Supreme Court Criminal Appeal No. 20 of 2o16, (unreported), the Supreme Court and the Court of Appeal found appropriate and upheld a sentence of 26 years' imprisonment, imposed by the trial court in a case of aggravated defilement. The appellant, aged 26 years, had defiled his own daughter who was 3 t/z lears old.

In Kabazi Issa v. Uganda, Criminal Appeal No. 268 of 2O15, this Court upheld a sentence of 32 years' imprisonment for two counts of

aggravated defilement imposed on the appellant by the trial court on the ground that it was well within the permissible sentencing range of 30 years up to death as provided by the Constitution (Sentencing Guidelines for Courts of Judicature) (Practice) Directions 2013.

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5 In Kizza, Goeffrey v Uganda; Criminal Appeal No. 076 of 2O1O, this Court upheld a sentence of 30 years' imprisonment in each of the two counts of aggravated defilement. The sentences were to run concurrently.

In Asega Gilbert v Uganda; Criminal Appeal No. O16 of 2O13, the appellant defiled two minor children aged 9 and 6 years respectively. This Court confirmed a sentence of 30 years'imprisonment per count. 10

In Ssenoga Frank v Uganda; Criminal Appeal No. O74 of 2O1O, the victim was under the age of 14 years. This court sentenced the appellant to 28 years and 4 months' imprisonment.

In Opio Moses v Uganda; Criminal Appeal No. 118 of 2O1O, the victim, a daughter to the appellant was 9 years old. The court confirmed a sentence of 27 years'imprisonment. 15

The appellant forcefully diverted the victim, who was only 8 yeais old at the time, from carrying out an errand for her grandmother. He took advantage of the fact that he was known to her before, kidnapped her from the road and took her to his house. He locked her up and kept her there for the night during which he had forceful sexual intercourse with her. Though he was not charged with the offence of kidnapping, in our view, it was a further aggravating factor.

In view of the sentences that we reviewed above, we do not think that the sentence of 24 years' imprisonment fell outside the range of sentences that have been imposed for the offence of aggravated 25

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defilement before. It was neither harsh nor manifestly excessive. We therefore uphold it.

In conclusion, this appeal has substantially failed and it is dismissed. The appellant shall continue to serve the sentence of 24 years imprisonment that was imposed upon him by the trial court.

It is so ordered

\f day of ln qrct^ Signed and delivered at Mbale this 2025.

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a,-

Irene Mulyagoia JUSTICE OF APPEAL

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Tibulya OF APPEAL

20 Moses K;azibwe Kawumi JUSTICE OF APPEAL