[2025] UGCA 35

#### THE REPUBLTC OF UGANDA

# IN THE COURT OF APPEAL OF UGANDA AT KAMPALA

(Coram:Geoffreg Kiryabwire, Muzamiru M Kibeedi & Oscar John Kihika, JJA)

# CRIMINAL APPEAL NO. COA-OO-CR-CN-OO4 - 2022

# WANKUMA ISAAC KIBEEDI : : : : : : : : : : : : : : : : : : : : : : : : : : : : : : : : : : : : : APPELLANT

#### VERSUS

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

[An appeal against the decision of Jogce Kauumq Judge, in the High Court of Uganda at Kampala, made on the 25th Nouember 2021 in Criminal Sesslon Case No. 208-20201

#### JUDGMENT OF THE COURT

# Introduction

t1l The Appellant was indicted for aggravated defilement contrar5r to sections 129(3) and (4) of the Penal Code Act, Cap. l2O. He was tried, and when the assessors advised the Court to convict the Appellant, he changed his plea to a guilty one. He was convicted and sentenced to 1O years' imprisonment.

#### Background

l2l On 30th September 2019, at around 7:30 pm, the victim, aged ¹³ years, took food to the Appellant's home. The Appellant stayed with her overnight while defiling her. When she returned home the next day, her pa-rents questioned her. She reported that the Appellant had

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defiled her. The matter was reported to the police, and the Appellant was arrested, prosecuted and convicted.

#### The Appeal

- t3l Being dissatisfied, the Appellant appealed to this Court against the sentence on the following grounds: - 1. THAT the M.al Jud.ge eted ln lqw and fact utlen she falled to eoaluate the eold.ence regard.lng tlu age of the ulctlm and, the convlct. - ii. The learned. trtal Judge en'ed ln laut and fact uhen she sentenced the Appellant to 70 gedrs hnprisonment, uthlch wa"s harsh, lllegal, and excesslue under the circum.stdnces.

#### Representation

- l4l Ms. Sheila Kihumuro Musinguzi appeared for the Appellant on State Brief, while Mr. Sam Oola, Senior Assistant Director of Public Prosecution, appeared for the Respondent. The Appellant was in Court through a video link from the prison in Luzira. - tsl The parties filed written submissions which have been considered by the Court.

# Appellants Submissions

t6l Counsel for the Appellant submitted that there were inconsistencies regarding the victim's age. She referred the Court to pages 4 and 6 of the Record of Appeal, where the witnesses put the victim's age at 12 and 13, respectively. On page 55, the victim impact statement puts

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the victim's age at 15. Counsel submitted that the inconsistencies are grave and go to the root of an essential ingredient of the offence.

- 171 Counsel invited the Court to find that age was not proved because of inconsistencies in the evidence of Pw1, Pw2 and Pw3. She cited the case of Candiga V Ugand.a, Court, of Appeal Crlmlnal Appeal No.23 of 2072, in which the Court held that major contradictions and inconsistencies result in the evidence of a witness being rejected unless satisfactorily explained, while minor ones will only lead to rejection of evidence if they point to deliberate untruthfulness on the part of the witness. - t8l Concerning the Appellant, Counsel submitted that he was 17 years old. She referred to pages 60 and 62 of the Record ofAppeal, where the birth certificate and baptism card proved the age. She contended that both the victim and the Appellant should have been charged under section 29A (2) of the Penal Code Act. - t9] Concerning the sentence, Counsel faults the triat judge for failing to consider the Appellant's age, which led to the passing of a harsh and excessive sentence of 1O years' imprisonment. She cited the case of Aharikundlra V Ugand.a [2018] UGSC 49, which enjoins the Court to apply the principle of consistency in sentencing. She submitted that the Appellant was a first offender and remorseful, ald at ¹⁷ years, should have been treated as a child capable of reforming. She relied on Section 9a(g) of the Children's Act, which prescribes a maximum sentence of 3 years. She prayed that this Court find the sentence passed as illegal and ought to have it set aside.

[10] Counsel further stated that the trial judge did not deduct the period spent on remand. She referred to page 43 of the Record of Appeal, where the judge stated that she had sentenced the Appellant less than the period spent on remand, noting that the statement was vague due to the failure to deduct the same mathematically. Had the 2 years and 27 days on pre-trial custody been considered, the Appellant would have been liable to serve 7 years, 11 months and 3 days.

#### Respondents Submissions

- [11] Counsel raised a preliminary objection that the Appellant had no right of appeal because he pleaded guilty to the charges. He cited Section 132(3) of the Trial on Indictment Act, which limits the right of appeal arising from a guilty plea except for the legality of the plea or sentence. He referred to page 41 of the record of appeal, where the plea of guilt was recorded. Counsel submitted that the trial judge could not be faulted for failing to examine evidence, given that no judgment was written. Counsel prayed that the appeal be dismissed. - [12] On the merits of the appeal, Counsel invited the Court to find that the facts admitted by the appellant put his age at 19 years. He referred to page 41 of the Record of Appeal, fifth paragraph and 4tt line. The age of the victim was found to be 13 years based on PF3A. He cited the case of Francis Omuron V rugand.a, Criminal Appeal No. 2 of 2OO2, where the Court held that "apar-t from medical euidence, d.ge rno;g olso be provid.ed bg btrth certificate, the testimony of the aictim's parents or obseruatlons bg the Courl."

- [13] In reply to charging the Appellant as a child, Counsel quoted section l29A of the PCA and stated that it does not prescribe an offence; therefore, charging the Appellant under that section would violate the principle of legality. He relied on the Salaatori Abukt V AG case, Constitutlonal Cdse No. 2 of 1997 and Article 28(7) of the Constitution, which provides that a person sha-ll not be charged with an offence not under the law with a penatty prescribed. - [14] Concerning the sentence, Counsel for the Respondent submitted that 10 years' imprisonment was neither harsh nor excessive. Counsel conceded that the Court did not arithmetically deduct the period spent on remand, but the Court was willing to credit such period to the Appellant. He submitted that no miscarriage of justice was occasioned by failing to deduct the period arithmetically. If the Court finds a miscarriage, it may invoke its powers to deduct the period.

# Determination of the Appeal

# Duty of a First Appellate Court

[15] As the first appellate Court, this Court has a duty to re-appraise all evidence adduced before the trial Court and come to its conclusions of fact and law while making allowance for the fact that the Court neither saw nor heard the witnesses testify. (See: RaIe 30 (1)(a) of the Judicature (Cour-t, of Appeal Rules/ Directions, S.f No. 73-7O; and Kifamunte Eenry as. Uganda" Supreme Coura Crlminal Appeal No. 7O of 7997.

Prelimi ob ction-No right ofappeal from a plea ofguilty.

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- [16] Counsel for the Respondent objected to the Appeal against conviction for reasons that the Appellant pleaded guilty. He averred that the only appeal allowed under such circumstances would be limited to the legality of the plea. We have reviewed the record of appeal. From pages ll to 29, the evidence of three prosecution witnesses and two defence witnesses was recorded. On pages 34 to 38, the summing up to assessors was done. On page 40, the assessors advised the Court to convict the Appellant. On the adjourned date, the Appellant expressed a desire to plead guilty. - [17] The indictment was read and explained to the Appellant, and after that, he pleaded guilty. The facts were read to the Appellant. He confirmed them. The material facts on page 41 of the Record of Appeal, confirmed by the Appellant to be correct, include the victim's age being 13 years, the Appellant's age upon medical examination being 19 years, and the fact that the Appellant had sex with the victim the whole night of 30 /09 l2Ol9. - [18] The Appellant is not challenging the legality of the plea leading to conviction. Having accepted and confirmed the facts, the Appellant cannot challenge the conviction. We agree with Counsel for the Respondent that the Appellant has no locus to challenge the conviction as provided in Section 132(3) of the Trial on Indictment Act. For the same reason, we find no merit in the challenge raised by the Appellant concerning his age and the victim's age.

# Ground one-Failure to investigate the ages of the victim and the Appellant

[19] The Appellant's Counsel submitted that he was 17 years old when he committed the offence and should have been treated as a juvenile offender. We have, however, found while resolving the above preliminary objection that the Appellant admitted to the facts of the case put to him when he pleaded guilty. Among the facts the Appellant confirmed as correct was his age, which was recorded as 19 years old, and the age of the victim, 13 years old. The trial Judge did not need to make any further investigation. We find no merit in this ground of appeal and dismiss it.

# Ground tuto-meting out dn illegal, harsh and excessloe sentence of 7O gears lmprisonment.

- [2O] Counsel for the Appellant faulted the trial Judge for not considering the age of the Appellant (17 years), which led to meting out a harsh sentence. She further faulted the trial Judge for not deducting the period spent on remand. The Respondent submitted that PF24A resolved the age issue and that the Appellant admitted that he was 19. Counsel, however, conceded that the Judge did not arithmetically deduct the period spent on remand. - [21] We have already established that the Appellant admitted the fact of age. He was an adult at the time the offence was committed. We, therefore, disagree with Counsel for the Appellant that the Appellant should have been sentenced as a juvenile. It should be pointed out that Counsel on state brief did not raise the issue of the Appellant's age at the trial. Instead at page 42 of the Record of Appeal, Counsel on state brief in mitigation stated that at 19 years, the Appellant could have been in a love relationship with the victim. At page 43, the Court

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considered the Appellant's age before sentence when she noted that "this is a case of a misguided youth", having accepted the fact that the Appellant was 19 years if age, before pronouncing the sentence.

[22] Concerning the failure to deduct the remand period, Counsel for the Respondent conceded that the trial Judge did not arithmetically deduct the period. The sentencing notes of the trial Judge on page 43 of the Record of Appeal, dated 25^th November 2021, are couched as follows:

# "I sentence the convict to 10 years' imprisonment less the period spent on remand."

[23] The duty of the Court to consider the pre-trial remand period when determining sentencing emanates from Article 23 (8) of the Constitution of the Republic of Uganda, 1995, which provides that:

> "Where a person is convicted and sentenced to a term of imprisonment for an offence, any period he or she spends in lawful custody in respect of the offence before the completion of his or her trial shall be taken into account in imposing the term of imprisonment."

[24] In the case of **Rwabugande V Uganda, [2017] UGSC 8**, the Supreme Court held that:

> "the taking into account of the period spent on remand by a Court is necessarily arithmetical. This is because the *period is known with certainty and precision; considering* the remand period should necessarily mean reducing or subtracting that period from the final sentence. **That** period spent in lawful custody before the trial must be specifically credited to an accused".

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- [25] The trial Court's sentencing order in the instant matter was made on the 25tt of November 2027, thus over four years following the Rwabugande decision delivered on 17th March 2077. The trial Court was duty-bound to follow the decision by arithmetically deducting the remand period. The failure to do so rendered the sentence illegal. - [26] On account of the aforesaid, the appeal against the sentence succeeds. We accordingly set aside the sentence of the trial Court. We shall now proceed to sentence the Appellant afresh under Section 11 of the Judicature Act, which provides as follows:

# o77. CoutA of Appeal to haae pouters of the Court of orlginal Jurisdtctton.

For the purpose of Lrcaing and determining an appeal, the Court of Appeal stutll haue all tLrc pouers, authoitg and juisdiction uested under anA written lqtu in the Court from the exercise of the oiginal juisdiction of uthich the appeal oiginallg emanqted."

- l27lln exercise of the above mandate, we have considered the mitigating and aggravating factors. Further, this Court resolved the issue concerning the age of the Appellant and the victim; the only other complaint about that sentence was the trial Court's non-deduction of the remand period. We accordingly find the sentence of 10 years imprisonment appropriate in the circumstances of this case. - [28] Counsel for the Appellant submitted that at page 42 of the Record of Appeal the Appellant was found to have been on remand since 14th October 2019 before conviction. This is confirmed from the record of the first arraignment before a Magistrate. He was convicted on 25th

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November 2021. The Appellant had spent 2 years, 1 month, and 10 days remand. When the said remand period is deducted from the sentence of 10 years, the Appellant is entitled to serve 7 years, ¹⁰ months and 20 days with effect from 25. LL.2O21, the date of conviction.

#### Disposition

[29] This appeal is partially allowed in the following terms:

- 1) The appeal against conviction is dismissed. - 2) The appeal against the sentence is allowed and the Appellant is resentenced and shall serve a period of 7 years, 10 months and 20 days with effect from the 25th November, 2021 the date of conviction.

We so order.

) 't /u ^c day or ..@.......ror" Delivered at Kampala this

GEO KIRYABWIRE Justice of Appeal \-

MUZAMIRU MUTANGULA KIBEEDI Justice ofAppeal

v OSCARU KIHIKA Justiceof/eeat I

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