Ahimbisibwe v Uganda (Criminal Appeal No. 223 of 2016) [2022] UGCA 55 (1 March 2022)

#### THE REPUBLIC OF UGANDA

### IN THE COURT OF APPEAL OF UGANDA AT I{AMPALA CRIMINAL APPEAL NO. 0223 OF 2016

(Aising out of the decision of Hon. Justice Masalu Musene in Nakasongola Criminal Session Case No. 0a8 of 2016)

## AHIMBISIBWE AMON : : : : : : : : : : : : : : : : : : : : : : : : : : : : : : : : : : : : : : : : APPELLANT

#### VERSUS

UGANDA RESPONDENT

#### CORAM: HON. JUSTICE ELIZABETH MUSOKE, JA

# <sup>10</sup> HON. WSTICE CATHERINE BAMUGEMEREIRE, JA HON. JUSTICE STEPHEN MUSOTA, JA

#### JUDGMENT OF COURT

15 The appellant was indicted and convicted of the offence of Murder contrary to sections 188 and 189 ofthe Penal Code Act and sentenced to 25 years imprisonment. The appellant was dissatisfied with the sentence passed by the trial court and with leave of court under S. 132(1) (b) of the Trial on Indictments Act, filed this appeal on a sole ground that;

20 The learned trial Judge erred in law and fact when he failed to consider mitigation factors therebg imposing a harsh and excessiue sentence upon the appellant thus occasioning a miscarriage of justice.

Due to the Covid- 19 pandemic, the appellant attended court via video link and was in touch with his lawyer throughout the hearing.

#### Background

5 The deceased and the appellant were casual labourers at a farm in Kanyogoga village, Nakasongola District and on 1"t July 2015, the appellant and the deceased left the farm heading to Katuugo Trading Centre and the two started quarrelling. The appellant was wearing lugabire and when one Mugisha Godfrey heard the appellant and the deceased quarreling. He moved out and found nobody but saw the deceased's lugabire with blood stains. The appellant returned to the farm alone and when asked where the deceased was. He said he left him at a lodge in Katuugo trading centre. Severa-l exhibits were recovered including the appellant's clthes he had just washed and a blood stained stick locally known as "enkoni" belonging to the appellant. Later, the appellant admitted having fought with the deceased which led to recovery of the body near a well in the bush. 10 15

#### Representation

At the hearing of the appeal, Mr. Kumbuga Richard appeared for the appellant while Ms. Caroline Marion Aciyo, Chief State Attorney appeared for the respondent.

Both learned counsel filed written submissions in support of their respective cases which were adopted by court.

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#### Appellant's submissions

Counsel submitted that the trial Judge did not take into account the mitigating factors and passed a harsh and excessive sentence on the appellant. The appellant was only 18 years at the time the offence was committed and that the trial Judge should have considered the age of the appellant and passed a more lenient sentence. Counsel relied on the decision in Rwabugande Moses Vs Uganda S. C. C. A No. 25 of 2OL4 on the proposition that the court ought to consider the mitigating and aggravating factors to arrive at an appropriate <sup>10</sup> sentence.

#### Respondent's submissions

15 Counsel for the respondent submitted that the learned trial Judge considered the mitigating and aggravating factors while passing sentence on the appellant. That the learned trial Judge considered that the appellant was more or less a child but noted that this was not a licence to commit an offence. That the aggravating factors outweigh the mitigating factors and as such, the 21-year sentence was appropriate in the circumstances of this case and is at the lower cap of the sentencing range for the offence of murder. The maximum sentence for murder is a death sentence and 25 years was lenient and appropriate in the circumstances of the case. 20

### Consideration of the appeal

We are mindful that an appellate court should not interfere with a sentence imposed by a trial court where the trial court has exercised its discretion on sentence, unless the exercise of that discretion is such that it results in the sentence imposed to be manifestly excessive or so low as to amount to a miscarriage of justice, or where the trial court ignored to consider an important matter or circumstance which ought to be considered while passing sentence or where the sentence imposed is wrong in principle (see Klwalabye Beruard v. Uganda Supreme Court Criminal Appeal No. 143 of 2OO1l. It does not matter that this Court would have given a different sentence if it had been the one trying the appellant (see Ogalo s/o Owoura v. R (1954) 24 E,AC. A 2701.

We have borne these principles in mind in resolving this appeal.

The learned trial Judge, while sentencing the appellant, stated that;

"I haue carefully considered the mitigating and aggrauating factors in this case. Being Aoung as submitted bg Counsel Gloria Basaza is not a license to commit ang offence at all, let alone murder. Murder is a uery senous offence which inuolued loss o/ hk. Ltfe is q. God giuen gifi which as counsel for the state has pinted out, was brought to an abrupt end bg the brutal and uncalled for acts of the conuict. Courts in this country will not tolerate such reckless behauior and impunity in our societg. In the premises, while spaing the conuict the death penaltg, I shall giue a longer period of confinement so that bg the time he comes out, he will haue sobered to liue a better life. So instead of 26 15 20 25

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Aears, I subtract one Aear of remand, and do herebg sentence gou to serue 25 gears'impisonment."

The sentence passed by the trial Judge is, in our view, within the range of sentences for murder. We must note that interfering with the sentence is not a matter of emotions but rather one of law. Unless it can be proved that the trial Judge flouted any of the principles in sentencing, then it does not matter whether the members of this Court would have given a different sentence if they had been the one trying the appellant. See Ogalo S/O Owousa v R [19541 24 E,ACA 270.

In Godi Akbar Hussein Vs Uganda S. C. C. A No. 03 of 2013, the appellant shot his wife to death and on conviction was sentenced to 25 years imprisonment.

In the instant case, the trial Judge considered the fact that the appellant was of a young age at the time the offence was committed. He considered both the mitigating and aggravating factors before sentencing the appellant. A sentence of 25 years' imprisonment is an appropriate sentence in a murder conviction like the present one. We find no reason to interfere with the sentence passed by the trial Judge because it is neither harsh nor excessive. 15

This appeal is accordingly dismissed.

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t\ \V' l6 ( Dated this ay of 2022

Hon. Justice Elizabeth Musoke, JA

7r!-, 2

### Hon. Justice Catherine Bamugemerelre, JA

<sup>15</sup> Hon. Justice Stephen Musota, JA