Azabo alias Yayanga v Uganda (Criminal Appeal No. 408 of 2016) [2023] UGCA 112 (30 March 2023)


THE REPUBLIC OF UGANDA

# THE COURT OF APPEAL OF UGANDA AT ARUA

## **CORAM: CHEBORION; MUGENYI AND GASHIRABAKE, JJA**

## CRIMINAL APPEAL NO. 408 OF 2016

AZABO BADURU alias YAYANGA ...................................

**VERSUS**

UGANDA ...................................

(Appeal from the High Court of Uganda at Lira (Keitirima, J) in Criminal Case No. 225 of 2014)

### JUDGMENT OF THE COURT

#### A. lntroduction

1. Mr. Azabo Badru alias Yayanga ('the Appellant') was arraigned for the offence of aggravated robbery. The Prosecution case before the trial court was that on 25th February 2014, armed with a bow and arrows, the Appellant had attacked and injured Mr. John Rwamunana, now deceased ('the Complainant') at the latter's home in Yumbe District, whereupon the Complainant fled his home but upon his return discovered that the Appellant had made off with Ushs. 1,500,000/= (one million five hundred thousand), a bag containing children's clothes and a mattress.

2. The Appellant was convicted of the offence of aggravated robbery contrary to section 285 and 286 (2) of the Penal Code Act, Cap. 12O and sentenced to thirtyfive (35) years' imprisonment. He has since lodged the present Appeal in this Court challenging his conviction and sentence on the following grounds:

- l. The leamed trial Judge ered in law and fact in convicting the Apryllanl ot aggnvated robbery when th6 ingredient of pafticipalion was not proved. - ll. The leamed trial Judge ened in law and facl when he passed an illegal sentence without constulering th6 pr64ial remand poriod that the Appellant had spant in pison. - lll. The leamed trial Judge ered in law and tacl when he sentenced the Appellant to 35 years in prison which sentence is ha.s,h and excessive in lhe circumslancas. - lV. The leamed trial Judge errod in law and tact when he sentenced the Appellant to pay the legal representalives of the vbtim 1 .5 millbn with intered of 309\$ per annum from lhe time the money was allegedly taken until payment in full and also to buy a new 4-incr, matlrass and give to the legal ropresentative of lhe victim. - 3. The Appellant seeks to have his conviction and sentence set aside or, in the alternative, to have the 3'year sentence and the restitution orders made by the trial court set aside or varied. - 4. At the hearing, Ms. Patience Bandaru of M/s Bandaru & Co. Advocates appeared for the Appellant while the Respondent was represented by Ms. Sharifah Nalukwago, a Chief State Attorney.

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### B. Determination

5. The law on the powers of an appellate court in an appeal from conviction and sentence, as is the case presently, is stated in Section 132 of the Trial on lndictment Act, Cap. 23. Section 132(1)(a) and (d) provide as follows:

Subiect to this section -

- a. An accusod person may appeal to the court of App€al from a conviction and sentence by the High Court in tho exercise of lta origlnal jurisdiction, as of right on a mattar of law, fact or mixod law and fact; - b. - c. - And the Court of Appeal may - - d. Contim, revelro or yary the conyiction and sentonco; - e - 6. lt is trite law that the duty of a first appellate Court is to reconsider all material evidence that was before the trial Court and, while giving allowance for the fact that it has neither seen nor heard the witnesses, come to its own conclusion on that evidence. ln so doing, the first appellate court must consider the evidence on any issue in its totality and not any piece thereof in isolation. lt is only through such reevaluation that it can reach its own conclusion, as distinct from merely endorsing the conclusion of the trial Court. See Basuma Fred vs. Uqand,'a. Criminal Aooeal No.7 of 2004 (Supreme Coutt) - 7. ln Bogere Moses & Another v. Uqanda, Griminal Appeal Na. l of <sup>11997</sup> (Supreme Court), it was further observed

A first appellate court must bear in mind that it did not have the opportunity to see and hearthe witnesses and should, where available on record, be guided by the impression of the trial iudge on the manner and demeanour of the witnessas.

8. ln Kifamunte Henry vs. Uqanda. Supreme Court Criminal Aooeal No. 10 of 1997 that duty was spelt out as follows

> The first appellate court has a duty to review the evidence ofthe case and to reconsider the materials before the trial judge. The appellate Court must then make up its own

> > l

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mind not disregarding lhe ,udgmenl appealed from bul carefully w€ighing and considering it.

- Ground l: The leamed trial Judge ened in law and fact in convicting the Appellant of aggravated robbery when the ingredient of pafticipation was not proved - 9. lt is the Appellant's case that contradictions in the prosecution evidence as to the village where the robbery was committed create reasonable doubt as to his participation in the offence. lt is argued that whereas the Amended lndictment indicates that the Appellant committed the robbery in Gbiria village in Yumbe District, two eye witnesses to the crime - John Ssenyonga (PWl) and Sylvia Nuwabeine (PW5), each attested to the offence having been committed in Kubani village in Ariwa Subcounty, Yumbe District while Onzi Deiya (PW2) confirmed that he is the LC I Chairman of Kubani village and not Gbiria village. Meanwhile, it was the evidence of Ondoga Michael (PW3) and the lnvestigating Officer (PW4) that the offence had been committed in Viria and Binia villages respectively. - 10. For the Respondent, on the other hand, it is argued that the trial judge corectly confirmed the Appellant's participation on the basis of the identification evidence of PW1 and PW5. These witnesses attested to having had prior knowledge of the Appellant given that he passed by their home regularly; were present at the scene of crime when the offence was committed, and identified him under favourable conditions, the robbery having transpired at 1.00 pm. Contrary to the assertions of the Appellant at trial that his prosecution was precipitated by a land dispute between himself and the Complainant, the 2 witnesses were not found to hold any grudge against the Appellant as would impeach their identification evidence and, in any event, PW3 (the Complainant's landlord) testified that he was not aware of any claim to the land in question by the Appellant. lt is the contention, therefore, that in so far as the Appellant had been properly placed at the scene of crime, there was no doubt that he committed the offence in Kubani village, the disparity in the village vis-a-vis that mentioned in the indictment being a minor issue that does not go to the root of the case.

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<sup>1</sup>1 . On its part, the trial judge rendered himself as follows on the issue of the Appellant's participation in the crime:

> The accused was identifbd by PWl and PWS who wers in the same house with the victim when he was aftacked. They both knew the accused very wall as he used to pess by their home when going on his hunting exrydition. They were able to repod to PWZ and later on Police as to the person who hacl attacked them and stolen their rolalive's ilems. The conditions for identincafion were so conducive that therc cannot have been a mistaken identw. nU2 he local council official was able lo tostfy as lo how they recovered the bag that }vas slo/en and even ass,sled tho victim with his bicycle to hospital. lt is clear that the prosecution Mtnessos PWr, PW2 and PWS had no grudge with the accused. I believe their testimony and they ptopedy i,lentilied the accused at the sceno of crime .. .. The identifying witnesses evidonco wa s conoborated by medical evidence that indeed lh6 victim who is now dec€ased was shol al.

- 12. The trial judge thus relied upon the evidence of PW1 and PWS to find that the Appellant had committed the offence he was indicted for given that both witnesses had prior knowledge of him; were eye witnesses to the robbery, and had conclusively identified him under very favourable circumstances. He then obtained corroboration therefor from the testimony of PW2 and the medical evidence on record. - "l3. We are constrained to observe from the onset that the Appellant does not quite challenge the incidence of the aggravated robbery or the proof thereof, only apparently contesting his participation therein on account of the disparities in the Respondent's evidence as highlighted earlier. lt is his contention that his indictment for that offence was occasioned by a grudge between him and the Complainant that is grounded in a land dispute. ln his unsworn testimony the Appellant denied having robbed any money and sought to present an alibi that he had not gone anywhere on the date of the robbery. - 14. Upon careful re-evaluation of the evidence on record, however, we find that the identification of the Appellant occurred in broad day light by persons with prior close knowledge of him. The veracity of their evidence was tested in cross examination but remained unimpeached. Against that background, we take the view that the eye witnesses' evidence would render unassailable the Appellant's participation in

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the events that transpired at the scene of crime. The same eye witnesses attest to the theft of numerous items including a black bag with Ushs. "1,500,000/= in it that was later recovered without the money and some clothes. Their evidence on the recovery of the bag is corroborated by the testimonies of PW2 and PW4, lending credence to the eye witnesses' assertion as to the ingredient of theft.

- 15. Their account of events on the use of violence in the course of the robbery is similarly corroborated by the testimony of PW2, who participated in taking the Complainant to hospital with an arrow lodged in his arm, as well as the medical evidence on record that confirms the said injury to the Complainant. The incidence of violence in the course of the theft thus establishes the offence of robbery contrary to section 285 of the Penal Code Act. To the extent that a bow and arrow can indeed cause death depending on the part of the body the arrow penetrates, and is therefore a dangerous weapon, the foregoing evidence would escalate the proven robbery to aggravated robbery. Consequently, we cannot fault the trial court for aniving at the same conclusion that the offence of aggravated robbery had been established as against the Appellant. - 16. Be that as it may, as quite correctly posited by the Appellant, we too did indeed observe contradictions in the Prosecution evidence with regard to the village where the robbery took place. Given the evidence on record that the robbery took place in Kubani village, it becomes apparent that the reference in the lndictment to its having transpired in Gbiria village was undoubtedly made in enor. However, not every defect in an lndictment would necessitate a reversal of a finding, sentence or indeed conviction of the High Court. That is the import of section '139(1) of the Trial on lndictment Act. lt provides as follows:

Subjoctto tho provislons ofany writton law, no ffnding, sontenco or order pasaed by the High Court shall bg rsve]led or alter€d on appoal on account of any error, omission, irr€gularity or misdir€ction in tho aummons, warrant, indlctmont, order, Judgmont or other procoodings boforo or durlng the trial unlos3 ruch error, omission, iri€gularity or mi3diroction has, ln fact, occasionod a failui€ ofjustice.

17. A failure of justice has been considered not to have occurred where there was nothing to show that the accused persons 'were either misled or left in doubt as

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to the nature of the offences with which they are charged.' See Ayume, Francis J. Criminal Procedure and Law in Uganda, Law Africa Publishing (U) Limited, 2010 Reprint, p. 78. Relatedly, in **Uganda vs Borespeyo Mpaya (1975)** HCB 245, the court compellingly relied upon the following definition of a 'miscarriage of justice' in *Archbold, John F., Criminal Pleading, Evidence and* Practice, 38<sup>th</sup> Edition, para. 925:

> A miscarriage of justice within the meaning of the proviso has occurred where by reason of a mistake, omission or irregularity in the trial the appellant has lost a chance of acquittal which was fairly open to him. The court may apply the proviso and dismiss the appeal if they are satisfied that on the whole of the facts and with correct direction the only proper verdict would have been one of guilty.

- 18. In other words, according to Ayume, Francis J, Criminal Procedure and Law in $Uq$ and a,<sup>1</sup> 'the test is whether an (appellate) tribunal alive to the errors or irregularities and properly directing itself on the evidence would have come to the same conclusion. - 19. In the instant case, the Indictment was very clear on the nature of the charges against the Appellant, clearly spelling out the particulars of the Complainant, the date of the robbery, the items stolen and the weapons used in the course of the robbery. For the avoidance of doubt, it is reproduced below:

#### STATEMENT OF OFFENCE

AGGRAVATED ROBBERY C/S 285 AND 286(1)(b) AND (2) OF THE PCA

#### PARTICULARS OF OFFENCE

AZABO BADURU ALIAS YAYANGA ON THE 25<sup>TH</sup> DAY OF FEB 2014 AT GBIRIA VILLAGE IN YUMBE DISTRICT ROBBED RWAMUNANA JOHN OF CASH ONE MILLION SHILLINGS (1000000) A BAG CONTAINIGN CLOTHES AND MATTRESS AND AT OF (sic) IMMEDIATELY BEFORE OR IMMEDIATELY (AFTER) THE SAID ROBBERY USED A DEADLY WEAPON TO WHICH (sic) A BOW AND ARROWETO SAID RWAMUNANA JOHN.

$1$ Ibid.

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GON put.

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- 20. ln our judgment, aside from the enor of the village where the robbery occurred, the Appellant was very clear of the nature of the case against him. This Court having anived at the same conclusion as the trial court on the Appellant's complicity in the aggravated robbery for which he was indicted, it follows that we do not find a miscarriage of justice in his conviction as would warrant a reversal thereof. We therefore find no merit in Ground 7 of this Appeal. - Grounds 2 & 3 The learned tial Judge ered in law and fact when he passed an illegal sentence without consideing the pre-tial remand period that the Appellant had spent in pison; and when he sentenced the Appe ant to 35 years in prison whbh sentencf, is harsh and excess/ye in tho circumstances. - 21. With regard to Ground 2, it is the Appellant's contention that the requirement in Article 23(8) of the Constitution to deduct the period spent on remand is mandatory, non-compliance with which would render a sentence illegal. The Appellant further contends undet Ground 3 that the sentence of 35 years is harsh, excessive and discordant with sentences previously meted out in similar cases. To illustrate his point, learned Counsel cited the case of Naturinda Tamson vs Uqanda, Criminal Appeal No. 25 of 2015 where the Supreme Court upheld a 16-year sentence for aggravated robbery. We were also referred to Kaiura Kiiza vs Uqanda. Griminal Appeal No. 136 of 2009 and Kusemererwa & Another vs Uqanda. Criminal Appeal No. 83 of 2010. ln the former case, this Court upheld 1o-year sentences for the offence of aggravated robbery involving the use ofpangas while in the latter case, it reduced a 20-yeat sentence for aggravated robbery with the use of a gun to 13 years' imprisonment. lt is thus argued that by comparison the 3s-year sentence that is in issue presently is not in uniformity with established precedent, and is harsh and excessive. - 22. On its part, the State concedes that the trial Judge did not consider the time spent on remand arithmetically but, following then applicable judicial precedents, simply took that period into account as was the position of the law then. lt is argued that the decision in Rwabuoande Moses v Uoanda. Criminal Appeal No. 25 ot 2014 (Supreme Court) that emphasized an arithme0c approach to the consideration of

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(,4q,-/l @, the period spent on remand had not yet been handed down at the time. Learned State Counsel further argues that the 35-year sentence handed down to the Appellant is not excessive given its compliance with the Constitution (Sentencing Guidelines for Coutts of Judicature) (Practice) Directions, 2013 ('lhe Sentencing Guidelines'), under which the offence of aggravated robbery attracts a minimum sentence of 35 years and maximum sentenc€ of death. The appropriateness of the sentence is further supported by the aggravating of the case in relation to sentences previously imposed in cases of a similar nature.

23. Article 23 (8) of the Constitution requires courts to consider the period spent by a convict in laMul custody in imposing the term of imprisonment. The Supreme Court fortified this constitutional provision in the case of Rwabuqande Moses vs. Uqanda Criminal appeal 25 of 2014 where it was observed

> It is our view that the taking into account of the period spent on remand by a court is necessarily arithmetical. This is because the period is known with certainty and precision; consideration of the remand period should therefore necessarily mean reducing or subtracling that period from the final sentence. That period spent in laMul custody prior to the trial must be specifically credited to an accused.

24. We arc alive to the Supreme Court decision in Asuman Abelle vs Uqanda (20181 UGSC 10 where the apex court did recognize the discretion of sentencing courts to revert to either the arithmetic approach espoused in Rwabuqande Moses vs. Usanda (supra) or a non-arithmetic approach where the ascertained penod spent in lawful custody is simply factored into the resultant sentence. However, the Supreme Court did in Asuman Abelle vs Uqanda (supra) advance the need for a sentencing court to demonstrate ascertainment of the exact period a convict has spent on remand for purposes of Article 23(8) of the Constitution. lt held:

> ll is incumbent upon the (sentencing) court to ascertain first th6 exact period the convicl has sp€nt in lawful custody and then choose whether to apply Rwabugande Moses v Uganda (th6 arithmetical formula) or Asuman Abelle v Uganda (the non- arithmotical approach). When this oeriod is not ascertained it cannot be possible to conecllv take it into unt (my emphasis)

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- 25. ln the instant case, without recourse to any deductions, the trialjudge simply stated that he had considered the period the convict had spent on remand, before pronouncing a 35-year custodial sentence- With respect, we do not find the nonreference to the period spent in lawful custody to conform with the requirement for ascertainment as speIt out in Asuman Abelle vs Uoanda (supra). We would, therefore, resolve Ground 2 in the affirmative - 26. We now turn to a consideration of whether the 3s-year sentenc€ imposed by the trial court is manifestly excessive, as alleged, or otheMise premised on the improper exercise of discretion or error by the trial court. Learned Counsel for the Appellant particularly contests the sentence for its discordance with sentences imposed for related offences, faulting the trial court for disregarding what he considers serious mitigating factors. - 27. The circumstances under which an appellate court may interfere with a sentence imposed by a trial court are well articulated in Kvalimpa Edward vs. Uqanda, Criminal Appeal No.10 of 1995 (Supreme Court) as follows:

An appropriate sentence is a matter for the discretion of the sentencing judge. Each case presents its own facts upon which a judge exercises his discretion. lt is the practice that as an appellate Court, this Court will not normally interfere with the discretion of the sentencing judge unless the sentenc€ is illegal or unless Court is satislied that the sentence imposed by the trial judge was so manifestly excessive as to amount lo an injustice: Ooalo s/o Owoura vs. R (1954) 2'l E. A. C. A 126 and 8\_yg Mohamedali Jamal (1948) 15 E. A. C. A 126.

28. That position was re-echoed in the latter case of Kiwalabye vs. Uqanda. Criminal Aopeal No.143 of 2001 (Supreme Court). lt was held

> The appellate Court is not to interfere with sentence imposed by a trial Court which has exercised ils discretion on sentences unless the exercise of the discretion is such that the trial Court ignores to consider an important matter or circumstances which ought to be considered when passing the sentence.

29. The discretionary duty upon a judicial officer at sentencing was further emphatically restated in Sekitoleko Yudah & Ors vs Uqanda, Criminal Appeal, No.33 of

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2014, where the Supreme Court made the pertinent observation that 'an appropriate sentence is a matter for the discretion of the sentencing judge (and) each case presents its own facts upon which a judge exercises his discretion.'

- 30. lt thus becomes apparent that the judicial discretion engrained within the sentencing process is such that no two cases (even in cases of fairly similar facts) would necessarily attract similar sentences. Rather, the circumstances of each case would be considered on their merits and the aggravating and mitigating circumstances thereof could yield a different sentence from that imposed in a case arising from an otheMise similar offence. This indeed is the gist of the position that was adopted by the Sup reme Court in Kaddu Kavulu Lawrence vs. Uqanda, Criminal Appeal 72 of 2018 as well as this Court in Muwonqe Fulqensio vs Uqanda Court of Appeal, Griminal Appeal No. 586 of 2014. - 31. Whereas, therefore, consistency in sentencing should be the ideal where all parameters are identical, it would not necessarily obviate the vitality of judicial discretion in sentencing. Where it is exercised judiciously and with appropriate deference to the principles that guide sentencing, the importance of judicial discretion in delivering substantive justice to the criminal justice system cannot be overstated. - 32. The Sentencing Guidelines do provide appropriate direction to courts, the objective of which is to rationalize sentencing and, as far as possible, ensure a degree consistency in the exercise of judicial discretion at sentencing. Under the Third Schedule to the said Guidelines, the offence of aggravated defilement would aftract a minimum sentence of 30 years' imprisonment and maxamum sentence of the death penalty. At face value, therefore, the 3s-year sentence imposed by the trial court in this case falls within that threshold and is thus neither illegal nor excessive. - 33. As to whether the trial court addressed the mitigating and aggravating circumstances of this case, we reproduce below its observations pursuant to the allocutus proceedings.

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I have considered both the aggravating and mitigating factors. The convic:t's actions were heinous to say the least. There were other civil ways to claim his rights if he had any but not shooting the victim. His actions could have prcbably even cost the victim's lile.

- 34. lt seems to us that the trial judge did address himself to both the mitigating and aggravating factors of the case but considered the latter to outweigh the former. This Court cannot ignore the observations of the trial judge that had the benefit of hearing the evidence first-hand. We do agree that the shooting of the Complainant with a bow and arrow depicts a violent Appellant that had little if any regard for the sanctity of human life. The anow that lodged in the Complainant's arm could very well have veered off course and fatally lodged in a more critical body organ like the heart or a lung. To compound matters, the Appellant was so callous that he had no qualms about taking such a violent action in the presence of the Complainant's family. - 35. The gravig of an offence, the brutality with which it is caried out and the effect of the sentence on the society are considerations that are aptly provided for in the Second Schedule to the Sentencing Guidelines. Whereas the absence of antecedents on record would suggest that the Appellant was a first offender, if such a violent robbery was the Appellant's initiation to the world of crime then his actions would in our view warrant a sufficiently retributive penalty to serve as a deterrent to other like-minded members of society. ln any event, with respect, we are alive to the rudimentary criminal profiling system that regrettably prevails in the country, which may not necessarily yield up{o-date antecedents of persons (previously) engaged in criminal activity. - 36. Be that as it may, we take the view that a sufficiently detenent and retributive penalty in the circumstances of this case would not necessarily amount to a 35 year sentence. We consider a 2g-yeat sentence more appropriate to the circumstances of this case. Whereas we might have considered a lesser sentence had there been a mere threat of violence or minimal use of violence, the actual shooting of his victim in circumstances that impute recklessness on his part would justify a comparatively harsher sentence as reflected in a 28-year term sentence.

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- 37. Consequently, the Appellants' sentence is so reduced. That reduced sentence would be subject to due consideration of the period spent on remand, to which we revert later in this judgment. - Ground 4: The leamed tial Judge ened in law and fact when he sentenced the ApW ant to pay the legal representatives of the victim 1.5 million with interest of 30% per annum from the time the money was allegedly taken until payment in full and also to buy a new +inch maftress and give to the legal representative of the victim. - 38. The monetary and other retributive orders made by the kial court are contested under this ground of appeal. lt is argued that in so far as the remedies accrue to the Deceased's legal representatives, they were made to a third party and are thus illegal and unenforceable. The award of the 4-inch mattress is particularly disputed as a description of the mattress that was robbed was never provided at trial. Conversely, the Respondent contends that the award of UGX 1.5 million at an interest of 30% was justified following proof of the monies' robbery from the Complainant by the Appellant and, given the death of the Complainant, his legal representatives were entitled to the same. - 39. Section 286(4) of the Penal Code Act provides for compensation by a person convicted of the offence of robbery as follows:

[otwithstanding soction 126 of the Trial on lndictronts Act whero a poBon ls convicted ot the felony of robbery the coud shall, unle3s the offandor is sontonced to doath, ordor the person convicted to pay such 3um by way of componsation to anv pe]lon to tha oroiudico of whom tho robborv was commlttod, as in the opinion of tho Court is just haying regard to tho injury or losa 3uffs.od by such porson, and any such ordor shall bo dogmod to bs a decrse and may be oxocutsd in ths manner provided by th6 Civil Procoduro Act. (our emphasis)

40. The foregoing legal provision resonates with section 126(1) of the Trial on lndictment Act, which mandates the High Court sitting as a trial court, in addition to any other lawful penalty, to order a convict to pay such compensation as the

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court deems fair and reasonable to a person that'has suffered material loss or personal injury in consequence of the offence committed.'

41.1n the instant case, the trial court discharged itself as follows

The convict ia also to pay lhe legal reprcsenlatives of the victim 1.5 million shillings which shall attract interest of 3096 Wr annum from the time it was taken until payment in full. The convict is also to buy a new 4-inch maftress and give to the legal rsp@sentative of the victim.

- 42. Having established that Ushs. 1,500,000/= million had been robbed by the Appellant, the trial court acted well within the ambit of faimess and reasonability prescribed under section 126(1) of the Trial on lndictment Act when it ordered for the compensation of the same amount. We take the view, however, that ordering 30% interest on the compensation ordered is exorbitant and unreasonable. The Appellant having been sentenced to a custodial sentence, it would suffice in our view if he was ordered to pay compensation in the specific sum of monies robbed at minimal interest purely to address national inflationary tendencies. We would therefore reduce the interest applicable thereto to 6% as from the date of conviction until payment in full. - 43. Furthermore, finding no provision for restitution in kind in the above laws, we would reverse the trial court's order for the purchase of a new mattress by the Appellant. We would, nonetheless, order compensation for the same in the sum of Ushs. 100,000/= that is similarly payable at 6% interest from the date of conviction until payment in full. - M. Finally, it did transpire in evidence and was duly acknowledged in the trial court's judgment that the Complainant has since died. That evidence was neither contested nor rebutted, and the trial judge's reference thereto is not contested in this Appeal. What is under challenge is the compensatory orders to the legal representative thereof. lt is trite law that in the event of death, the Estate of a deceased person would be entitled to any and all monies that would otheruise be due to him. For the avoidance of doubt, therefore, we would substitute reference

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to the legal representatives in the orders of the lower court with the Estate of the Complainant.

## C. Conclusion

- 45. The Appellant was arrested and detained on 25h February 2014, and sentenced to a custodial sentence on 28h October 2016. The period on remand was therefore 2 years and 8 months. Having reduced the 3S-year sentence imposed by the trial court to a 28-year sentence, we would deduct the period spent by the Appellant on remand. - 46. ln the result, we find no merit in the Appeal against conviction and it is hereby dismissed. The Appeal against the sentence and additional orders is hereby allowed in the following terms: - l. The 35-year sentence handed down to the Appellant is set aside and substituted with a sentence of twenty-eight (28) years from the date of conviction, from which is deducted the two (2) years and eight (8) months spent on remand. - ll. The Appellant is to serve a sentence of twenty-five (25) years and four (4) months from the date of his conviction by the trial court. - lll. The Appellant shall compensate the Deceased's Estate in the sum of Ushs 1,600,000/= at 6% interest from the date of conviction until payment in full.

It is so ordered

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Dated and delivered at Kampala this ....................................

**NOON**

**Barishaki Cheborion Justice of Appeal**

Midngery $\big\vert \big\vert$

Monica K. Mugenyi **Justice of Appeal**

$\gt:$

**Christopher Gashirabake Justice of Appeal**

Criminal Appeal No. 408 of 2016