[2024] UGCA 121

# THE REPUBLIC OF UGANDA

# IN THE COURT OF APPEAL OF UGANDA AT MBALE

I C o ram : Egonda- N ^te nde, G as h i ra ba ke, K i h i ka, JJAJ

## CRIMINAL APPEAL NO. OI I6 OF 20I7

# (Arising from High Court Criminal Case No.ll8 of 2013 at Mbale)

10 WOLUFU EDWARD.... APPELLANT

#### VERSUS

UGANDA RESPONDENT

(Appeal against the Judgment of High Court of Uganda [5. Okalany, J] at Mbale delivered on the 03'd of March 201 7)

## JUDGMENT OF THE COURT

### lntroduction

l]This is an appeal, with the leave of Court, against sentence only.

The Appellant was indicted for the offence of murder contrary to sections 188 and 189 ofthe Penal Code Act, Cap 120. The particulars ofthe offence were that the appellant on the night of 3l't October 2006 at Buwosuda village in Sironko District murdered one Giboyi Stephen.

### Brief facts of the case

2] The Appellant on the 31 't day of October 2006 Buwosuda village in Sironko District murdered one Ciboyi Stephen. Magomu Elisa the father of the Appellant and PW3 (Nangoli Emmanuel) reported a case of cutting of his trees to Giboyi Steven who referred him to the Salaliya police post. On 3l't October 2006, the deceased went to the home of Magomu to follow up on the alleged matter. Later Magomu and the deceased left the home. Magomu informed his wife and PW3 that they were going to the police post.

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- ⁵ 3] Magomu and the deceased returned home at 7.00 p.m. and entered Magomu's house. After about five minutes his parents, Magomu and Nekesa Beatrice escorted the deceased to the roadside. As soon as they retumed to the house, PW3, and his parents heard some noise outside, as if something had fallen. His parents asked PW3 to go and see what could have happened outside. 10 - 4] PW3 rushed outside and he saw the accused at the roadside slaughtering the deceased using a'panga'. When the accused saw PW3, he moved towards him with a blood stained 'panga'. PW3 feared that he would be the next target and ran back to his parents and he told them what he had witnessed. - 5] Magomu and his wife also went outside accompanied by PW3 and they found the accused standing within their compound brandishing a "panga" prompting the three to go back to the house. The accused then dared them to get out. PW3 heard him challenge his family members to come out and see 15 - 6] After about l0 minutes, some neighbors of Magomu including Nerima Jessica who had heard some commotion at the scene were at the scene and PW3 narrated what he had witnessed to Nerima Jessica. The crowd that had gathered became rowdy and some of them pulled out iron sheets from Magomu's house while others gathered and bumt up Magomu's household properties. 20 25 - 7] Magomu, his wife Nerima, PW3, and his young siblings were forced to flee from the scene to save their lives. Magomu and PW3 went to Sironko Police Station. Subsequently, PW3, his parents, and young siblings went to live with their relatives in Sironko town for about one year. The Appellant was indicted, convicted, and sentenced to 50 years.

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8] The Appellant being dissatisfied with the sentence passed by the trial Judge lodged this appeal against the sentence only stating that:

> The learned trial Judge erued in law and fact when he imposed on the Appellant a sentence of 50 years' imprisonment which is harsh and manifestly excessive given lhe circumslances o/ the case.

9] The respondent opposed the Appeal 10

#### Representation

10] The Appellant was represented by Mr. Muhammad Mbalire. The Respondent was represented by Mr. Semalemba Simon, Assistant DPP.

Submissions by Counsel for the Appellant.

- The learned trial Judge erred in law and fact when he imposed on the Appetlant a sentence of 50 years' imprisonment which is harsh and manifestly excessive given the circumstances of the case. 15 - ¹I ] Before making submissions, counsel for the appellant sought leave of this Court to appeal on sentence only under Section 132 (lxb) of The Trial On Indictment Act Cap 23, which empowers this Court to interfere with the sentence passed by the trial Court. - l2l Counsel submitted that the principles upon which an appellate Court may interfere with a sentence passed by the trial sentencing Court were considered by the Supreme Court in Kyalimpa Edward v Uganda, Criminal Appeal No. - l0 of 1995, where the Court referred to the position of the law in R ^v Haviland (1983) 5 Cr App R(s) 109. 25 - 13] It was submitted for the appellant that the leamed trial Judge did not apply the principle of uniformity in sentencing of offences committed in similar

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- ⁵ circumstances leading her to arrive at a harsh and manifestly excessive sentence of 50 years. - 14] Counsel further submitted that it is now settled law that before a sentencing Court passes a sentence against a convict, it must consider all the mitigating factors and aggravating factors. Counsel cited the Supreme Court decision in f - Aharikundira Yusitina Vs Uganda, criminal No. 27 of 2015, where the Court emphasized the need to consider all the mitigating and aggravating factors. 10 - 15]lt was argued by Counsel for the Appellant, that in mitigation the Appellant prayed for mercy and leniency. It was submitted that the Appellant was remorseful, a first offender, had 9 children and a wife to take care of, and has been on remand for 4 years. Counsel for Appellant referred the Court to paragraph 21 of the Constitution (Sentencing Guidelines) for Courts of Judicature (Practice) Directions 201 3. - l6] Counsel further submitted that there was a need for the sentencing Judge to put into consideration the principles of law required at sentencing under Paragraph 5(a) of the Constitution (Sentencing Guidelines for Courts of Judicature) (Practice) Directions, 2013. This requires the sentencing Court to consider the principles of proportionality, deterrence, and rehabilitation, that the sentence should be aimed at assisting in rehabilitating and re-integrating an offender into society. 20 25 - l7]Counsel argued that had the trial court considered the mitigating factors he would have arrived at the fact that the appellant was a young man at his youthful age capable of reforming and becoming useful to the society. A 50 year sentence imposed on the appellant would not render the appellant reform but rather ruin his future since he was capable of reforming. Counsel submitted 4lPage

- ⁵ that the sentence was manifestly harsh and excessive. Counsel cited Aharikundira Yusitina (supra), arguing that there is a need for consistency. - 18] Counset , while seeking a reduction of the sentence, argued that in the same case, the Supreme Court discussed the sentences imposed in murder cases and cited inter alia Suzan Kigula v Uganda, HCT-00 CR-SC-0115, where the accused was sentenced upon mitigation to 20 years' imprisonment, Uganda v Uwera Nsenga, Criminal Appeal No. 312 of 2013 where the accused ran her husband over with a car and eventually killed him at the gate in their home and was sentenced to 20 years' imprisonment and in Uganda v Lydia Draru Alias Atim HCT- 00- CR- SC- 0404 of 2010, where the accused hit the husband with a metal/rod, Akbar Hussein Godi in Godi Versus Uganda, Supreme Court Criminal Appeal No. 3 of 2013 who shot the wife dead and was sentenced to 25 years imprisonment to mention but a few. In a recent case of Mbunya Godfrey Versus Uganda, Supreme Court Criminal Appeal No. 04 of 2011, the Appellant murdered his wife in cold blood, and the Court while dealing with a sentence observed that even when the two crimes are identical, the Court should try as much as possible be consistency. - 19] Counsel prayed that this Court set aside the 50-year sentence and replace it with a sentence of 25 years from which the time spent on remand should be deducted.

#### ²⁵ Submissions by Counsel for the Respondent.

- 20] Counsel had no objection to the appellant's prayer to appeal against sentence only, he however opposed the appeal and prayer to reduce the said sentence. - 21]Counsel argued that this Court as well as the Supreme Court have decided that an appellate court should only alter the trial court's sentence if the said trial

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- ⁵ court acted on a wrong principle, overlooked some material factor, or the sentence was manifestly harsh and excessive Counsel cited the case of Rwabugande Moses vs Uganda, I20l7l UGSC 7. - 22] Counsel for the Respondent submitted that in determining the appropriate sentence, the leamed trial Judge considered all the aggravating and mitigating factors. Counsel noted that the trial Judge considered the following; - i. The Appellant was convicted of a count of murder which caruies ^a maximum se nlence of death. - ii. Under the Third Schedule to the Sentencing Guidelines, the starting sentencing poinl for murder, after laking into account all the aggravating and mitigatingfactors is 30 yeors. - iii. The degree of injury or harm occasioned lo the deceased was grave, and delicole/sensitive parts of the bodies were targeted. According to PlVj, the Appellant's brother, lhe Appellant was .found 'slaughtering' the deceased, and according 1o lhe post-mortem report, the body of the deceased had deep cut wounds on lhe scalp and the neck was almost detachedfrom the rest of the body. - iv. The Appellant's acts of murder were planned, premeditated, deliberate, and intentional. - The Appellant used a panga to murder the deceased. - r'/ The impacl of the crime on the deceased's fanily members and residents who lost afather, breadwinner, and area leader. - vii. The deceased person was killed for executing his mandate as the area LC l Chairperson. This savage altack on him v'as committed near the home of the victim that he had gone to help. That victim was the Appellant's father.

- ⁵ viii. The Appellant's impunity and ulter disrespect of the rule oJ law can even be seen in lhe way he threatened the lives of the wilnesses to the murder by brondishing his blood-stained ponga at his brother and parents and telling them, "l hove killed one of you. You are lhe ones remaining come oul and see " . - ix. The Appellant hod threatened the deceased several times simply because the deceased had wrilten lhe letler referring the Appellant's father to the police for the Appellant's acts of stealing his own falher's trees and threote ning his father.

23] In his view, the aggravating factors called for a deterrent sentence and the sentence of 50 years' imprisonment was appropriate in the circumstances.

24] Counsel took cognizance of the requirement for uniformity and consistency in sentencing levels as set out in the authorities cited by learned Counsel for the Appellant. He however argued that in the current case, there was a brutal murder of an area L. C I Chairperson who was undertaking his official duties of keeping law and order in his jurisdiction. This murder was premeditated. This should surely call for a punishment outside the above-recognized rage of20-35 years. Counsel argued further that Penal sanctions are attached to every crime according to the nature in which it was committed. For violent, brutal, and planned murders such as this, this Honourable Court as well as the Supreme Court have previously maintained sentences of death, life imprisonment, and even a quantified term of 50 years' imprisonment.

25] In Bahemuka William & Anor Vs. Uganda, Court of Appeal Criminal Appeal No. 4 of 2003, this Court found that the grisly and barbaric manner in which the Appellants murdered the deceased deserved a deterrent sentence and thus did not interfere with the death sentence passed by the trial Judge. In the case of Sebuliba Silaje Vs. Uganda, Court of Appeal No.0319 of 2009, this TlPage

- ⁵ Court upheld a sentence of life imprisonment despite the Appellant's plea of guilty at trial. The Appellant therein had murdered his former employer for reporting his acts of theft to police. ln the recent case of Ssemaganda Sperito & Another Vs Uganda, Criminal Appeal No. 456 of 2016, this Court upheld a sentence of 50 years' imprisonment for the Appellants who hacked a relative to death. 10 - 26] Counsel argued that it was their firm belief that Courts of law represent the sentiments and interests of the community. The community where this murder was committed was traumatized by the brutal death. An area local leader was brutally murdered for performing his duties. The Appellant jeopardized his own family's livelihood because their homes were razed to the ground by the villagers for acts done by him. That is the same family, which the Appellant had victimized by stealing his father's trees, and traumatized by threatening to kill them for taking lawful measures of reporting him to the local authorities. - 27] It was further argued by Counsel that the Appellant's submissions did not disclose any illegality or principles flouted by the trial Judge while sentencing the Appellant. The sentence is consistent with previous sentences given by this Court and the Supreme Court. The leamed Trial Judge took into account the law, the values, and the norms of the community within which this crime was committed and rightly came up with the decision that a sentence of 50 years was the most appropriate sentence given the circumstances of this case. 20 - ²⁸¹Counsel prayed that this Court should not interfere with the discretion of the trial Court while sentencing.

## Analvsis

- ²⁹¹We have carefully considered all the material in the appeal including the record, the submissions ofCounsel for either side, the law and authorities cited and those not cited. As this is a first appeal, we shall begin by reiterating the duty of this Court while handling such an appeal. Under Rule 30(l) (a) of the Judicature (Court of Appeal Rules) Directions, S. I 13-10, this Court, on appeal from a decision of the High Court, may reappraise the evidence and make inferences of fact. In the case of Kifamunte Henry Vs Uganda, Supreme Court Criminal Appeal No. l0 of 1997, it was held that a first appellate court has to review the evidence of the case to reconsider the materials before the trial Judge, and then make up its mind not disregarding the judgment appealed but carefully weighing and considering it. We shall now proceed to consider the ground ofappeal. 10 - 30] For this court, as a first appellate court, to interfere with the sentence imposed by the trial court, it must be shown that the sentence is illegal, or founded upon a wrong principle of the law, or that the trial Court failed to take into account an important matter or circumstance, or made an error in principle or imposed a sentence which is harsh and manifestly excessive in the circumstances. See Kiwalabye Bernard Vs. Uganda, Supreme Court Criminal Appeal No. 143 of 2001, Rwabugande Moses Vs. Uganda, Supreme Court Criminal Appeal No.25 of 2014 and Livingstone Kakooza Vs. Uganda, SC Criminal Appeal No. l7of1993. - 3l ] The Appellant in this case faults the trial sentencing Court on two fronts. That the sentence was harsh and manifestly excessive considering the circumstances of this case and the Court did not follow the principle of consistency. - 32] In assessing whether the sentence was harsh and manifestly excessive, this court is required to re-evaluate and establish whether the trial Judge considered 9lPage 30

⁵ both the mitigating and aggravating factors and whether he exceeded the stated range of sentence provided by law. While sentencing the trial Judge held that;

> "In sentencing the convict, I have considered the submissions of the prosecution ond the Defence, as well os the laws above mentioned. The fo I low i ng facto rs ore spec ifi cal ly cons ide re d ;

(1) The fact that the cowict was convicted of murder which carries ^a maximum punishment of death.

(2) The monner in which the deceased was killed was atrocious, so the aggrovatingfactors specified in paragraphs 20 (a), (b), (d), (e)' (o) and (p) of the Constitution (Sentencing Guidelines for Courts of Judicature) (Practice Directions 2013 are relevant).

(3) The fact that the convict is afirst ofender aged 42 years

(4) The remorsefulness of the convict and his plea that he has a bigfamily to take care of and the fact that the convict has spent over 3 years ¹¹ months, I week, and j days on remand before sentencing. It is mandatory under Article 23 (8) of the constitulion of the Republic of Uganda 1995 to take into account the period spent on remand while sentencing a cowict. Paragraph l5 (2) of the Constitution (Sentencing Guidelines for Courts of Judicature) (Practice) Direction 2013, requires thal the court deducts the period spent on remand from the senlence considered appropriate in the circumslances of each case.

Although dealh is lhe maximum punishment prescribedfor murder, for the reason lhal the convicl is afirst offender and appears remorseful, I make a finding thot he deserves a second chance in life and should be sentenced to imprisonmenl.

I would have sentenced him to 50 years' imprisonment but having deducted the periocl srynt on remand I senlence lhe conyict to 46 years' imprisonment from the date ofconviction." 30

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- 5 33] It is our considered view that the trial Judge considered the mitigating factors to be outweighed by the aggravating factors. She was alive to the submissions made by both Counsel for the Appellant and the Respondent regarding both mitigating and aggravating factors. She also took note ofthe cited law by both Counsel. - 15 34] Having considered all the mitigating and aggravating factors, in assessing whether the sentence was harsh and manifestly excessive, we are guided by the fact that the maximum penalty for murder is death according to Sections 188 and 189 of the Penal Code Act and the 1'r Item of the 3'd schedule of the Sentencing Guidelines. Additionally, under the Constitution (Sentencing Guidelines for Courts of Judicature) Practice Directions, 201 3, the starting point for sentencing aggravated robbery is 35 years. In Aharikundira Yustina vs. Uganda, SCCA No. 27 of 2015, the Supreme Court had this to say when assessing whether the sentence is harsh or manifestly excessive; 10

"There is o high threshold to be met for on appellote court to inteNene with the sentence honded down by o tridl judge on grounds of it being manifestly excessive. Sentencing is not o mechonicol process but o motter of judiciol discretion therelorc perfect unifomity is hordly possible. The key word is "monilestly excessive". An oppellate court will onlv inteNene where the sentence imoosed exceeds the oermissible ronoe or sentence votiotion."

- (Emphasis ours) - 35] Bearing in mind the above position of the law, we take cognizance of the principle of consistency provided for under Paragraph 6(c). The same case of Aharikundira Yustina Vs. Uganda, (supra) Court held that this principle is rooted in the law and held thus;

"it is the duty of this Courl while dealing with appeals regarding sentencing lo ensure consistency wilh cases that have similar facts. en is the vilal inci, 0 senlencin

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- 36] Clearly from the foregoing it is not correct to assert as counsel for the respondent did that being a first offender is irrelevant in sentencing. The Appellant was also remorseful. It is a mitigating factor that a sentencing court must consider together with other mitigating factors and the aggravating factors before coming to the appropriate sentence. Where a trial court fails to do so the duty is then cast upon the appellate court to do so. See Aharikundira v Uganda (supra). - 37) On scrutiny of the sentencing order it is clear that the leamed trial Judge did not consider important the fact that the appellant was a first offender and remorseful. He omitted a significant mitigating factor, which ordinarily would suggest that the offender should not attract the maximum punishment for the offences he has committed. See Livingstone Kakooza v Uganda (supra). - 38] It is the duty of this court while dealing with appeals regarding sentencing to ensure consistency with cases that have almost similar facts. Consistency is a vital principle of a sentencing regime. It is deeply rooted in the rule of law and requires that laws be applied with equality and without unjustifiable differentiation. 20 - 39] Case in point include inter alia Suzan Kigula in Suzan Kigula v Ug HCT 00 CR-SC-OI15 (in mitigation) where the accused cut her husband's throat with a sharp panga to death before their children and was sentenced upon mitigation to 20 years' imprisonment, Uganda v Uwera Nsenga, Criminal Appeal No. 312 of2013 where the accused ran her husband over with a car and eventually killed him at the gate in their home and was sentenced to 20 years. 30

⁵ 40] Considering both the mitigating and aggravating circumstances of this case we are satished that an appropriate sentence in this case would be 30 year's imprisonment. The 4 years in pretrial custody which we would deduct off and would order the appellant to serve a term of 26 years imprisonment on each count, to be served concurrently from the 26'h September 201 I , the date of conviction. 10

We so order

-\ Dated at Kampala this ..,.,7. F1 day of 2024 I FREDRICK EGONDA. NTENDE JUSTICE OF APPEAL CHRISTOPHER GASH IRABAKE JUSTICE OF APPEAL t OSC J KIHIKA JUSTI APP L ta

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