Asimwe Kenneth v Uganda (Criminal Appeal No. 0614 of 2015) [2023] UGCA 367 (9 August 2023)

#### THE REPUBLIC OF UGANDA

#### IN THE COURT OF APPEAL OF UGANDA AT MBARARA

#### CRIMINAL APPEAL NO. 0614 OF 2015

(ARISING FROM KAB-00-CR-CSC-No. 00177 of 2013)

ASIIMWE KENNETH ....................................

#### **VERSUS**

**UGANDA :::::::::::::::::::::::::::::::::::**

(Appeal from the judgement of the learned trial Judge Hon. Justice Micheal Elubu of the *High Court of Uganda at Kabale delivered on the 30/05/2014)*

# CORAM: HON. JUSTICE RICHARD BUTEERA, DCJ HON. JUSTICE CHRISTOPHER GASHIRABAKE, JA HON. JUSTICE OSCAR KIHIKA, JA

#### JUDGMENT OF COURT

The Appellant was indicted and convicted of the offence of Murder contrary to sections 188 and 189 of the Penal Code Act and sentenced to 27 years' imprisonment.

The Appellant was dissatisfied with the sentence of the trial court and filed an appeal to this court on the sole ground that:

1. The Learned trial Judge erred in law and fact when he passed out a manifestly harsh and excessive sentence without due regard to the mitigating factors hence occasioning a miscarriage of Justice.

### Background

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The brief facts of the case as accepted by the trial Judge are as follows; on the 3rd day of June 2072, at Mukirwa Trading Centre which is located in Bubare Sub County in Kabale district, the deceased, after being paid his monthly salary went to the trading Centre with two friends namely; Friday Nicholas (PW4) and Arinda Anaclet (PW5). When the deceased and his friends reached at Hakima Trading Centre near the path heading up to Kyantobe's place, they found the Appellant and two others standing by the road-side holding walking sticks and stones at about 9.00 pm. The Appellant and the others used the sticks to beat the deceased and his two friends. The deceased and his friends then decided to r€rn away from the Appellant and his accomplices. However, the Appellant also had a stone which he used to hit the deceased on the forehead consequent upon which the deceased collapsed. Upon seeing this, the Appellant and the others ran away from the scene. The deceased was rushed to Kabale hospital where he died the next day.

The Appellant was eventually arrested charged with murder and subsequently convicted. Hence this appeal.

## Representation

At the hearing of this appeal, Mr. Geoffrey Masereka on state brief appeared for the Appellant while Mr. Joseph Kyomuhendo, Chief State Attorney, appeared for the Respondent. The Appellant's counsel sought and was granted leave to appeal against sentence only. Both parties filed written submissions which were adopted with leave of court.

## Appellant's submissions

Counsel submitted that the learned trial Judge passed a harsh and exccssive sentence basing on the fact that the offence of murder was rampant in Kigezi Region and that in that session alone, there were 24 murder cases out of the 40 cases that the court heard. Counsel argued that the trial judge did not consider

other mitigating factors as enumerated by defense counsel and that merely taking note of the mitigating factors is not enough. Counsel relied on the decision in Aharlkundira Yustlna versus Uganda, SCCA No. 27 of 2Ol5 in which it was noted that since the trial judge did not weigh the mitigating factors as against the aggravatiing factors, this automatically placed a duty on the Court of Appeal to weigh the factors raised.

Counsel argued that consistency is a vital principle of a sentencing regime that is deeply rooted in the rule of law, which requires that laws be applied with equality and without unjustifiable differentiation. Counsel based his argument on the decision in Suzan Ktgula versus Uganda, HCT-OO-CR-SC-O115 in which the accused cut her husband's throat with a sharp panga to death before their children and was sentenced to 20 years' imprisonment upon mitigation.

Counsel prayed that the sentence of 27 years be set aside and replaced with a lesser sentence.

## Respondent's submissions

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In reply, counsel submitted that interfering with a sentence imposed on a convict is not a matter of compassion or emotions but rather of reason and law. Counsel relied on the decision in Kiwalabye Bernard vs Uganda, Supreme Court Crlminal APPEAL No. 143 of 2OO1 for the proposition that an appellate court is not to interfere with the sentence imposed by a tria-l court which has exercised its discretion on sentence unless the exercise of discretion is such that it results into imposing a sentence that is too harsh or so low as to amount to a miscarriage of ju stice.

Counsel argued that the trial Judge exercised his discretion judiciously and considered all the important circumstances of the case in arriving at an appropriate sentence of 27 years' imprisonment, That the courts have to consider the nature of the offence in the circumstances in which it was committed and pass a severe sentence where the aggravating factors outweigh the mitigating factors.

## Consideration of the Appeal

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It has been consistently held in numerous cases both by the Supreme Court and the predecessor Court of Appeal for East Africa, and more specifically in the case of Livingstone Kakooza v Uganda, SC Criminal Appeal No. 17 of 1993 [unreported]that:

'An appellate court uill onlA alter a sentence imposed by the trial court if it is euident it acted on a wrong pinciple or ouerlooked some mateial factor, or if the sentence is manifestlg excessiue in uieut of the circumstances of the case. Sentences imposed in preuious cases of similar nature, uthile not being precedents, do afford material for consideration: See Ogalo S/O Ououra <sup>u</sup> R (19s4) 27 D. A. C. A. 27O.'

The foregoing principles are equally applicable in the instant casc. Further, the court may not interfere with the sentence imposed by a trial Court simply because it would have imposed a different sentence had it been the trial Court. We shall bear in mind the above principles while resolving this appeal.

The sentencing order of the trial judge states as follows

"The Conuict shall be treated as a first offence as there is no record of preuious conuiction. TLe conuict ho"s been on remand since June of 2012 which is 2 gears. The Court takes into consideration age of the accused. He is a young man and seeks forgiueness. The Court hotueuer cannot condone the actions of the Conuict. He cut shorT the life of another young man uith a promising future uhose father told Court that the death had greatlg affected the familg. The offence of Murder is rampant in Kigezi Region. In lhis Session alone there utere 24 Murder cases out of 4O. The Court must therefore deter bg finding out a message to those of a like mind. For the aboue reasons the Court considers a sentence of 3O gears appropiate but utill reduce this by the period spent on remand and sentence the conuict to 27 years' imprisonment."

The maximum sentence for the offence of murder is death. We find from the court record and the lower court judgment quoted above that the learned trial Judge considered both the aggravating and mitigating factors of the case and passed a 27 -yean imprisonment sentence on the Appellant. The Constitution (Sentenclng Guldelines for Courts of Judlcature) (Practice) Directions 2O13 provide for the starting point in sentencing for murder as 35 years and the maximum as death. Regarding the principle of uniformity, we are alive to the fact that no two crimes are identical but at the same time, we have to try as much as possible to maintain consistency in sentences.

In Niwagaba Didas and Turyamubona Francis Vs Uganda Consolidated Crimlnal Appeals Nos. O565 and 587 of 2O15 (delivered on 13th October 202O), the I st appellant was sentenced Lo 27 Yz years imprisonment and the 2nd appellant sentenced to 37 Yz years' imprisonment for the offence of Murder. On appeai, the Court ofAppeal sentenced both the lstand the 2"d Appellants to 27 years and 6 months' imprisonment aftcr deducting the period spent on remand.

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In I\rgume Moses vs Uganda Crlminal Appeal No. 475 of 2OL6 (delivered on 13th October 2O2Ol, the appellant had been convicted arrd sentenced to 3O years' imprisonment for the offence of Murder. On appeal to the Court of Appeal, the Appellant's sentence was reduced to 27Yz years' imprisonment for Murder.

In Kalyango Musa and Kamya Edward Vs Uganda Crimlnal Appeal No. 377 of 2019 (delivered on 18th July 20231, the appellants had been convicted of Murder and the 1"t Appellant sentenced to 3O years' imprisonment while the 2"d Appellant was sentenced to 25 years' imprisonment. On appeal to the Court of Appeal, the l"t Appellant was sentenced to 27 years, 8 months and 3 days' imprisonment and the 2"d Appellant was acquitted.

Taking into account the principle of uniformity, we therefore find the impugned sentence of 27 years' imprisonment handed out to the Appellant was neither harsh nor excessive; nor do we hnd that it occasioned a miscarriage ofjustice to him.

In the premises, we find no grounds upon which we can fault the learned trial Judge and therefore uphold the sentence imposed upon the Appellant.

This appeal is devoid of merit and we therefore dismiss it.

We so order

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Delivered and dated this .................................... Eptember 2023.

**RICHARD BUTEERA Deputy Chief Justice**

**CHRISTOPHER GASHIRABAKE Justice of Appeal**

OSCAR JOHN KIHIKA Justice of Appeal