Arach v Uganda (Criminal Appeal 649 of 2014) [2025] UGCA 36 (13 February 2025)

## THE REPUBLIC OF UGANDA

# IN THE COURT OF APPEAL OF UGANDA HOLDEN AT GULU

[Coram: Egonda-Ntende, Tibulya, Kazibwe, JJA]

# Criminal Appeal No. 649 of 2014

(Arising from High Court Criminal Session Case No. 139 of 2011 at Lira)

| BETWEEN | | |---------|------------------------------------------------| | | ARACH JOEL==================================== | | AND | | | | UGANDA=================================== |

(An appeal from a decision of the High Court of Uganda sitting at Lira (Nabisinde, J.), delivered on the 18th day of December 2013.)

# JUDGMENT OF THE COURT

## **Introduction**

- $\lceil 1 \rceil$ This is an appeal against sentence only with leave of this court. - The appellant was convicted by the High Court on his own plea of guilty, $[2]$ on the 17<sup>th</sup> December 2013, on 2 counts of manslaughter contrary to sections 187 and 189 of the Penal Code Act and 1 count of attempted murder contrary to section 204 of the Penal Code Act. The particulars of the count1 were that the appellant on the 13<sup>th</sup> February 2011, at Awich village in Omach Parish, Oyam District unlawfully caused the death of Ogoro Richard. The particulars of count 2 are that the appellant on 13<sup>th</sup> February 2011 at Awich village in Omach Parish, Oyam District unlawfully caused the death of Akullo Teddy. The particulars of count 3 are that the appellant on the 13<sup>th</sup> February 2011 at Awich village in Omach Parish, Oyam District, attempted to unlawfully cause the death of Omara Peter. - $[3]$ He was sentenced to life imprisonment for the rest of his natural life on each count of manslaughter and on count 3 for attempted murder. - The facts of the case as accepted by the trial Court are that on the 13th $[4]$

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day of December, 2011 at about 6 a.m., the appellant was heard quarrelling with his wife in their house. Shortly aftelwards, the appellant's wife left the house with a baby tied to her back and she began moving towards the main road. The appellant came out of the house with a sharp knife tucked in his trouser belt while threatening to kill someone. He followed his wife on a bicycle and retumed home after a short while. He stated that he had already chased his wife away and therefore his mother Atari Joicy could now use the land near the compound.

- t5] Upon retum home, a verbal exchange ensued between the appellant and the first deceased, Ogoga Richard, his brother. As they were still talking, the appellant suddenly removed the knife from his waist and stabbed Ogoga Richard on the upper part of the stomach. Ogoga cried for help and fell down in the compound with his intestines protruding from the stab wound. - t6] Omara Peter who was also a brother to the appellant, was on his way to church when he saw the appellant stab Ogoga Richard on the stomach. Omara started to run away, the appellant ran after him and stabbed him on the back, the victim fell down and the appellant stabbed him a second time on the upper arm. Akullu Teddy, the second deceased who had just retumed from the borehole saw the appellant stab her father. She asked him why he was doing so. The appellant turned around and stabbed Akullu Teddy on the lower part of her stomach. Some people who had witnessed the stabbings raised an alarm. The appellant fled to the bush and hid. The three victims were rushed to Anyeke Health IV where Ogoga Richard and Akullu Teddy died as a result ofthe injuries. - I7l Later on, a one Omodo Jimmy, found the appellant loitering aimlessly along the swamp in their village while holding a very sharp knife. When he questioned the appellant, the appellant revealed to him that he had brutally stabbed three people. The appellant was escorted to the L. C <sup>1</sup> Chairman of Akwia woro village, he was disarmed and taken to Acaba Police Post. At Police, the appellant admitted to brutally stabbing three people using the very sharp knife he was found with. The L. C I Chairman handed over the sharp knife to the Police. A postmortem was carried out on the bodies of Ogoga fuchard and Akullu Teddy and it was observed that the cause of their death was as a result of shock from the penetrating wounds to the stomach and lungs respectively. Omara Peter was medically examined and found with deep stab wounds on the right upper arm and right scapular region of his body. The appellant was medically

examined and found to be of sound mind.

#### **Grounds of appeal**

[8] It is against the sentence of three terms of imprisonment for life that the appellant now appeals to this Court. The two grounds of appeal were formulated as follows:

> '1. The trial judge erred in law when she passed an illegal sentence against the Appellant to serve three life imprisonment terms.

> 2. The trial judge erred in law when she passed sentences of three life imprisonment terms which is very harsh and excessive in the circumstances thereby occasioning a miscarriage of justice.'

#### **Representation and Counsel's Submissions**

- $[9]$ At the hearing, the appellant was represented by Ms. Akello Alice Latigo while Ms. Acio Marion held brief for Ms. Angutoko Immaculate, Chief State Attorney, in the Office of the Director, Public Prosecutions, for the respondent. - $[10]$ Counsel for the appellant, in her submissions, abandoned ground 1 of appeal and only argued ground 2 in relation to the harshness and excessiveness of the sentences. It is this ground that we shall consider in this appeal. - $\lceil 11 \rceil$ Learned counsel for the appellant submitted that the trial judge did not take into account the fact that the appellant was a young person of 37 years old and was capable of reforming. She equally faulted the judge of failing to consider the fact that the convict had pleaded guilty to manslaughter and attempted murder. She argued that being a first offender with no criminal record, the maximum sentence was harsh. She prayed that this Court be pleased to interfere with the sentences since they were manifestly harsh and excessive. - $[12]$ Counsel referred us to Onyabo Bosco v Uganda, [2017] UGCA 98, where this Court reduced a sentence of 45 years to 20 years' imprisonment for the offence of murder. She also cited the case of Kia Erin v Uganda [2017] UGCA 70, where an appellant had been convicted of murder and sentenced to life imprisonment. On appeal, this court reduced the sentence to 18 years of imprisonment. - $[13]$ In opposing the appeal, counsel for the respondent submitted that the

learned trial Judge considered both the aggravating and mitigating circumstances and found that the aggravating circumstances outweighed the mitigating factors. She argued that the sentences of life imprisonment for 2 counts of manslaughter and 1 count of attempted murder fell within the permissible range prescribed by law and that the sentences were legal and appropriate in the circumstances.

$\lceil 14 \rceil$ She referred to Sebuliba Siraji v Uganda [2014] UGCA 123, where this Court upheld a sentence of imprisonment for life for an appellant who was convicted on his own plea of guilty on an indictment of murder in which he cut the deceased with a Panga. She also relied on the authority of <u>Sunday Gordon v Uganda</u>, [2015] UGCA 67, where this Court saw no reason for interfering with the discretion of the trial judge who had imposed a life imprisonment sentence against the appellant for murder.

### **Analysis**

- $[15]$ The established position of the law as enunciated in Livingstone Kakooza v Uganda, [1994] UGSC 17 and Kiwalabye Bernard v Uganda, Supreme Court Criminal Appeal No. 143 of 2001 (unreported), is that an appellate court will only alter a sentence imposed by the trial court if it is evident that it acted on a wrong principle or overlooked some material factor or if the sentence is manifestly excessive in view of the circumstances of the case. Sentences imposed in previous cases of similar nature, while not being precedents, do afford material for consideration. - $[16]$ The cornerstone of this appeal is that the sentences meted out by the trial Judge were harsh and excessive and that the sentences were imposed without consideration of the mitigating factors. - $[17]$ From the sentencing order, we observed that the trial Judge noted that the aggravating circumstances far outweighed the mitigating circumstances on all three counts, without acknowledging or mentioning any of the mitigating factors. An in-depth scrutiny of the 4-page sentencing order reveals that the trial Judge took cognizance of the fact that during the commission of the offence, the appellant had neither acted in self-defense nor was he mentally impaired or suffering from abnormality of the mind, matters that were extraneous, to the case before her though the same were referred to by counsel for the appellant. - In addition to considering matters that she ought not to have considered $[18]$ the trial Judge ignored the following important mitigating factors. The appellant was a first-time offender with no previous record. The appellant

pleaded guilty thus saving the courts' time and resources. She did not recognize that the plea of guilt was a gesture of remorse on the part of the appellant. The appellant was only 37 years old, capable of reform and becoming a useful member of society. He was married with 4 children. As was noted by the Supreme Court in Kakooza v Uganda (supra),

> 'It is unusual to impose maximum sentence on a first offender and it is wrong to depart from that rule of practice because he might have been convicted of a graver offence: See Josephine Arisol V. R. (1957) E. A. 447. Taking into account the circumstances of this case especially the long standing family dispute over land, the manner in which the Appellant assaulted the deceased, the fact that the Appellant was a first offender, and the sentences imposed in similar cases by the courts in this country, we were satisfied that the sentence of $18$ years imprisonment imposed by the trial judge was based on wrong factors so as to warrant interference by this court.'

- $[19]$ In <u>Kakooza v Uganda (supra)</u> the appellant had been sentenced to 18 years imprisonment for manslaughter. The Supreme Court reduced the sentence from 18 years to 10 years imprisonment. In that case there was no guilty plea. Guilty pleas in practice attract significant reduction in sentences. - In Otende Osejani v Uganda $[1965]$ E A 627 the appellant was co habiting $[20]$ with a woman who he found in the company of a man in circumstances that suggested that the woman and man were about to have sexual intercourse. He killed the man. He was charged and convicted of the murder of the man. On appeal the Court of Appeal for East Africa substituted the conviction of murder with one of manslaughter, on the ground that there was sufficient provocation. The appellant was then sentenced to 10 years imprisonment. - We are satisfied that the sentences imposed in this appeal by the trial $\lceil 21 \rceil$ judge being the maximum sentences available for those offences were harsh and manifestly excessive considering the various mitigating factors ignored by the learned trial Judge. This warrants this court to interfere with the sentences of the trial court.

#### **Decision**

$\mathbf{1}$

$[22]$ We are satisfied that the appropriate sentence on count1 and count 2

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would be a sentence of 7 years imprisonment on each of those counts taking the aggravating and mitigating factors into account. We would deduct a period of 2 years and 11 months from the said period leaving the appellant to serve a term of 4 years and 1 month from the 17<sup>th</sup> December 2013, the date of his conviction.

- With regard to count 3 we find that a sentence of 5 years imprisonment $[23]$ would be the appropriate sentence from which we deduct the period spent in pretrial custody of 2 years and 11 months, leaving a term of 2 years and 1 month to be served from the 17<sup>th</sup> of December 2013, the date of conviction. - $[24]$ All sentences would run concurrently. - $[25]$ Since the sentences set out above have already been served in full we order the immediate release of the appellant unless he is held on some other lawful charge.

Dated, signed, and delivered at Gulu this $\frac{1}{2}$ day of redrick Egonda-Ntende **Justice of Appeal**

Margaret Tibulya **Justice of Appeal**

Moses Kazibwe Kawumi **Justice of Appeal**

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