Abiti Vs Uganda (Criminal Appeal No. 286 of 2015) [2019] UGCA 341 (4 September 2019)

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### THE REPUBLIC OF UGANDA

IN THE COURT OF APPEAL OF UGANDA AT JINJA

[CORAM: OWINY- DOLLO, DCJ; MUSOTA and TUHAISE, JJA]

CRIMINAL APPEAL NO. 286 OF 2015

(Arising from the judament of the High Court of Uganda at Jinja, (Basaza J.) in Criminal Session Case No. 208 of 2014)

ABITI MOSES **11.11.11.11.11.11.11.11.11.11.11.11.11.**

### **VERSUS**

**UGANDA** ..................... ......................................

**JUDGMENT**

# **Background**

The appellant was indicted, tried, and convicted, of the offence of murder c/s 188 & 189 of the Penal Code Act; and was sentenced to 23 years imprisonment. The facts of the case were that on $1<sup>st</sup>$ January 2014, at Kyampisi village in Kayunga District, the appellant was at a $20$ bar with one Chadiru Monica (herein after referred to as the victim) who was known as his girl friend. At around 4:00 pm of the same day, he was seen pulling the victim out of the disco hall; as she resisted him. Soon thereafter, the victim's body was discovered lying behind the disco hall; with injuries in her private parts. $25$

The report from the post mortem examination carried out at Kayunga Hospital revealed that her large and small intestines were pulled out through her vagina and anus. The cause of death was established to be the injuries that were inflicted on her. Medical examination of the appellant showed that he was of normal mental disposition. The evidence adduced at the trial was that the victim was last seen in the company of the appellant. $\mathcal{L}$

#### $\mathsf{S}$ **Representation**

At the hearing of the Appeal, the appellant was represented by Counsel Munyamasoko on state brief, while the respondent was represented by Counsel Macrina (Principal State Attorney).

## **Ground of Appeal**

- At the hearing of the Appeal, counsel for the appellant sought leave to $10$ amend the Memorandum of Appeal to reflect one ground only; to wit that: 'the sentence of 23 years' imprisonment was harsh and manifestly *excessive.*' This application for amendment of the grounds of appeal was granted; and so, Counsel addressed Court on only the ground on $15$ sentence.

## The case for the appellant

Counsel for the appellant submitted that the sentence of 23 years was illegal given that the appellant pleaded guilty; and there was a plea bargain in which a sentence of 22 years was agreed upon during the process. Counsel pointed out that the appellant had spent 11 months $20$ on remand before conviction. Counsel further argued that the **process** of the plea bargaining was illegal considering that the interpreter did not sign as required. Counsel therefore prayed that the whole process be declared a nullity and be set aside.

**Case for Respondent.** $25$

Counsel implored this Court to uphold the sentence imposed. Counsel stated that this Court as the $1<sup>st</sup>$ appellate Court in the matter, has the duty to re-evaluate the evidence and make up its conclusion after perusal of the plea bargaining agreement. Counsel pointed out that in the plea bargain agreement on record, the appellant himself signed


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this plea bargain agreement twice. Counsel thus prayed that this Court $\overline{5}$ upholds the 22 years sentence.

### **Court's Consideration**

It is trite law that sentencing is a matter for the discretion of the trial Court. Thus, an appellate Court can only interfere with the exercise of discretion if the sentence imposed is manifestly excessive, or is so $10$ low as to occasion miscarriage of justice. Court may also interfere where the trial Court ignores to consider an important matter or circumstance it ought to have considered before imposing the sentence; or where the sentence imposed is wrong in principle (See Kiwalabye Bernard v Uganda; Criminal Appeal No.143 of 2001 (unreported). $15$

In cases of plea of guilty, as in the instant case, no appeal lies there from; except where the legality of the plea or sentence is in issue. Plea bargain serves to benefit both the accused person and the prosecution. It enables an accused person to face lesser charges than he or she would have, had there been no such bargain. The other $20$ benefit is that the resultant sentence would be less than what the Court would otherwise have imposed, had the conviction resulted from a full trial. The law seizes the trial Court with the responsibility to guide the plea bargain process; and ensure that the resultant agreement is devoid of vitiating factors as would render the process a $25$ nullity. Where a plea bargain outcome results from some misunderstanding, by the accused person, of the consequence of the bargain, then the plea bargain is defective; and must be revoked.

underwent a plea bargain process that resulted in an agreement he endorsed. It is this, which the trial Court relied upon to convict and

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On the evidence, the Appellant in the instant case before us

sentence him; after he pleaded guilty. On the face of it, as is $\mathsf{S}$ manifested in the record of the proceedings, the learned trial judge established from the Appellant that he understood the plea bargain process, and had only signed on the memorandum of agreement after he was satisfied with the content of the memorandum of agreement. He actually pointed out to the learned trial judge two places on the $10$ memorandum of agreement, where he signed.

That may well be so; but there is this nagging fact which seems not to have been addressed by the learned trial judge. There is indication that there was need for an interpreter/translator; but under that provision, there is neither a name nor signature of such a person. We 15 should point out that 'plea-bargain' is quite a commendable innovation and intervention in the criminal justice system. However, we should equally point out that this worthy judicial enterprise can be abused, and rendered so grossly defective as to instead achieve the $20$ very converse of the purpose for which it is intended; hence result in an abuse of the due process. It is thus the duty of the trial Court to ensure that the process was devoid of such flaw.

The learned trial judge in the instant matter ought to have established to Court's satisfaction whether the accused person before her had understood the language used in the document to which he had $25$ appended his signature. She should have sought clarification from the learned counsel for the accused what language had been used to communicate to the accused during the plea bargain process. We also notice that the specimen form for the plea bargain agreement has provision for an interpreter/translator who has taken oath, and whose 30 attestation as to the fact that the accused person understood what

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- he/she was agreeing on, is a prerequisite. Accordingly then, this $\mathsf{S}$ glaring absence of attestation by a translator/interpreter is fatal to the whole plea bargain process, and the resultant conviction and sentence. Thus, we cannot allow the conviction and sentence to stand. - In the result, we quash the conviction, and set aside the sentence. We also order that the Appellant face a new trial. We further direct the $10$ High Court at Jinja to ensure that the Appellant is accorded the new trial at the very earliest opportunity; as any further delay would occasion gross injustice to him.

Dated at Jinja this ... Q day of ...... $\ldots 2019$

Alfonse C. Owiny - Dollo **Deputy Chief Justice**

Stephen Musota **Justice of Appeal**

Percy Night Tuhaise **Justice of Appeal**

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