Befeho v Uganda (Criminal Appeal 15 of 2017) [2021] UGSC 7 (1 October 2021)

10

### THE REPUBLIC OF UGANDA

# IN THE SUPREME COURT OF UGANDA AT KAMPALA

## CORAM: (OPIO-AWERI, MWONDHA, TIBATEMWA-EKIRIKUBINZA, MUHANGUZI, CHIBITA, JJSC)

## CRIMINAL APPEAL NO. 15 OF 2017

#### **BETWEEN**

# <table> BEFEHO IDDI ::::::::::::::::::::::::::::::::::::

#### AND

## UGANDA :::::::::::::::::::::::::::::::::::

(Appeal arising from the decision of the Court Appeal at Mbarara in Criminal Appeal N0.264 of 2009 before: Hon. Justices: Kakuru, Byamukama and Owiny-Dollo, JJA dated 6<sup>th</sup> December, 2016)

#### **Representation:**

The appellant was represented by Jolly Mutumba of Jolly Mutumba 25 & Co. Advocates on State Brief while the respondent was represented by Mulindwa Badru, a Senior Assistant Director of Public Prosecutions.

#### **JUDGMENT OF THE COURT**

This is a second appeal by the appellants after having been dissatisfied and aggrieved by the judgment and decision of the Court of Appeal.

The background to this appeal is that the appellant was indicted on the charge of murder C/s of 188 & 189 of the Penal Code Act. 10

The facts as accepted by the lower court are that the appellant fell in love with the deceased-Bakundane Noridah. He would give gifts to the deceased but she declined the appellant's love advances. On realizing that the deceased was still adamant, the appellant

demanded that the gifts be returned and threatened to kill her if 15 she failed to do so.

On 31/8/2005, the appellant met the deceased along a village path, attacked and stabbed her repeatedly with a knife thereby killing her instantly. On the following day, the appellant turned himself in at

Bushenyi Police Station where he was subsequently charged with $20$ murder

The High Court Judge (Mugamba,J) found the appellant guilty of the murder and sentenced him to life imprisonment.

Dissatisfied with the trial Court decision, the appellant appealed to the Court of Appeal against both the conviction and sentence. The 25 appeal against the conviction was later dropped and the appeal proceeded only against the sentence.

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At the Court of Appeal, it was submitted that the sentence of life $\mathsf{S}$ imprisonment was harsh and manifestly excessive because the trial Judge did not consider the mitigating factors.

The Court of Appeal among other things noted that the period of 3 years and 7 months the appellant had spent on remand was not

considered by the trial Judge. The sentence of life imprisonment 10 was set aside and substituted with a term of 30 years imprisonment which was to run from 12<sup>th</sup> May 2009, the day the appellant was convicted.

Still dissatisfied with the sentence, the appellant appealed to this Court on the following ground: 15

- 1. The learned Justices of Appeal erred in law when they imposed an illegal sentence of 30 years imprisonment upon the appellant without considering the period he had spent on remand. - Both counsel relied on their written submissions which this Court 20 will consider in determination of the appeal before it.

## Appellant's submissions

The appellant's counsel submitted that the sentence of 30 years imprisonment imposed by the Court of Appeal was illegal in that the

Court did not take into consideration the period of 3 years and 7 25 months which the appellant had spent on remand

Counsel submitted that Article 23 (8) of the Constitution requires a court to take into account the remand period. In line with this

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- provision, counsel submitted that although the Court of Appeal was $\mathsf{S}$ alive to the obligation that the trial Court had to take into account the remand period, it did not apply the said provision when substituting the sentence. That the Court of Appeal only stated that: - "Given the circumstances of this case and in line with the authorities 10 cited above, we set aside the sentence of life imprisonment and substitute it with a term of 30 years imprisonment. The sentence is to run from 12<sup>th</sup> May 2009 the day he was convicted by the High Court." - Counsel argued that the above excerpt from the Court of Appeal 15 judgment clearly shows that the court did not mention the remand period when it imposed a new sentence. That the Court of Appeal made the same error as the trial Court. In support of the foregoing argument, counsel relied on the authorities of **Mboneigaba James**

vs. Uganda SCCA No.25 of 2017 and Tukamuhebwa David 20 Junior & ano vs. Uganda SCCA No.59 of 2016 where this Court in the two cases set aside the sentences imposed by the Court of Appeal on the ground that it had failed to comply with Article 23 (8) of the **Constitution** when substituting the sentences of the trial Court. 25

#### **Prayers**

Counsel therefore prayed that the appeal be allowed, the judgment as well as the sentence of the Court of Appeal be set aside and an appropriate sentence be imposed.

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In the alternative counsel prayed that in case this Court finds the $\mathsf{S}$ sentence of 30 years imprisonment appropriate, then the remand period of 3 years and 7 months be deducted from the sentence.

## Respondent's reply

Counsel for the respondent conceded that the period spent on remand was not taken into consideration by the Court of Appeal 10 while imposing a new sentence. Counsel therefore prayed that the sentence be set aside and substituted with 30 years' imprisonment after subtracting the period spent on remand since this was the intention of the Court of Appeal. Counsel argued that the intention

of Court is drawn from the fact that the sentence of 30 years 15 imprisonment was ordered to run from the time of conviction.

## Rejoinder

In rejoinder, the appellant's counsel reiterated its alternative prayer that if this Court finds that the 30 years imprisonment sentence is appropriate, then it ought to subtract the remand period of 3 years and 7 months. That the final sentence to be served would then be 26 years imprisonment and 5 months.

### **Court's Consideration**

It is a trite principle of law that sentencing is a discretion of court. It is also a trite principle of law that an appellate court can only 25 interfere with the sentencing discretion of the trial court if: the sentence is illegal, the court acted contrary to the law or on a wrong principle of law or overlooked a material factor or where the said

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- sentence is manifestly harsh and excessive. (See: **Kiwalabye** $\mathsf{S}$ Bernard vs. Uganda SCCA No.143 of 2001; Livingstone Kakooza vs. Uganda SCCA No.17 of 1993; Latif Buulo vs. Uganda SCCA No.31 of 2017). - In order to determine whether or not there is need for this Court to interfere with the sentence being challenged before us, it is 10 necessary to re-state the sentencing proceedings as well as the reasons given for the sentence imposed by the Court of Appeal. The Court of Appeal stated as follows:

"... the learned trial Judge was mindful of the mitigating and aggravating factors, although he did not specifically state so. We note 15 that the maximum sentence for the offence of murder is death. The offence of murder is a serious one as rightly observed by the trial *Judge. The appellant murdered the deceased on account of her* refusal to marry him because she desired to pursue her studies

- instead. As it were, her dreams were utterly snuffed out by the 20 heinous act of the appellant. We are satisfied that the circumstances of this case called for a sentence commensurate to the gravity of the offence. In the exercise of his discretion, the trial Judge considered such sentence to be life imprisonment. - *We also take the view that there is need to have consistency in* 25 sentencing in cases with similar circumstances ... In the instant appeal, the appellant is a first offender and was aged 30 years at the time of conviction. At that age, he deserved to be given an opportunity to reform and rejoin his community as a transformed

- person. We also note that he spent 3 years and 7 months on remand $\mathsf{S}$ a factor not considered by the trial Judge as required by law ... Given the circumstances of this case, ... we set aside the sentence of life imprisonment and substitute it with a term of 30 years *imprisonment.*" (Emphasis of Court) - The appellant's counsel argued that the Court of Appeal did 10 not subtract the 3 years and 7 months the appellant had spent on remand.

Following this Court's decision in Rwabugande Moses vs. **Uganda SCCA No.25 of 2014**, it is now the position of the law that a sentencing court must, in arriving at an appropriate 15 sentence calculate the period a convict has spent on remand and subtract it from the sentence arrived at.

It is also the position of the law that the stance made in the **Rwabugande decision** (which was delivered on 3<sup>rd</sup> March 2017) does not have any retrospective effect on sentences which were passed before it. (See: **Sebunya Robert and** Kakuma Tonny vs. Uganda SCCA No. 58 of 2016).

We note that in the present case, the Court of Appeal delivered its decision on $6^{th}$ December 2016, a year before the

Rwabugande decision was delivered. Therefore, there was no 25 need for the Court of Appeal to apply the arithmetic calculation in imposing the sentence.

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Prior to the Rwabugande position, it was enough for the $\mathsf{S}$ sentencing court to state that it has taken into account the period the convict spent on remand.

We note that the Court of Appeal in its judgment took cognizance of the fact that the trial Judge had not taken into

account the period the appellant had spent on remand. In 10 order to rectify the anomaly, the Court of Appeal considered the period that the convict spent on remand and reduced the sentence to 30 years imprisonment.

In the premise, we find no illegality in the sentence imposed by the Court of Appeal to warrant interference by this Court.

#### Conclusion

Arising from the above, we hold that this appeal fails and is hereby dismissed.

Accordingly, the judgment and sentence of 30 years imprisonment imposed by the Court of Appeal is upheld. 20

We so order.

Dated at Kampala this ....................................

HON. JUSTICE RUBBY OPIO-AWERI JUSTICE OF THE SUPREME COURT.

Thursd HON. JUSTICE FAITH MWONDHA, JUSTICE OF THE SUPREME COURT.

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Usakenni

HON. JUSTICE PROF. LILLIAN TIBATEMWA-EKIRIKUBINZA, JUSTICE OF THE SUPREME COURT.

$\begin{smallmatrix}&&&\\0&0&0&0&0&0&0&0&0\end{smallmatrix}$ HON. JUSTICE MUHANGUZI, JUSTICE OF THE SUPREME COURT.

HON. JUSTICE MIKE CHIBITA, JUSTICE OF THE SUPREME COURT.

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