Byakaye Musoilo v Uganda (Criminal Appeal No. 540 of 2016) [2025] UGCA 122 (19 March 2025)

# THE REPUBLIC OF UGANDA

IN THE COURT OF APPEAL OF UGANDA AT MASAKA

[Coram: H. Obura, C. Gashirabake and E. K. Luswata, JJA]

CRIMINAL APPEAL NO.54O OF 2016

| BYAKAYE MUSOILO alias | | |-----------------------|-----------| | YAKOBO | APPELLANT |

#### VERSUS

UGANDA.... ........ R. ESPONDENT

(An Appeal arisingfrom the Judgment of the High Court at Masaka (Flavian Zeija, J.) in Criminal Case No. 097 of20l3 delivered on the 2l't day of December 2016)

# JUDGMENT OF THE COURT

## Introduction

- [l]The appellant was indicted and convicted of the offence of aggravated defilement contrary to sections 129 (3) & (+XbXc) Cap 120 and now sections 116 (3) &(4Xb) (c) Cap 128 of the Penal Code Act. - [2] It is alleged that on the 19th day of February 2013 at the Golf Course in the Masaka district, he performed a sexual actwithZl, a boy (aged 9 years) under the age of 14 years. The trial court convicted and sentenced the Appellant to 33 years of imprisonment. The appellant was aggrieved with the decision of the trial Court, hence this appeal on the ground;

The learned triol Judge erred in law and.fact when he sentenced lhe Appellant to a period of thirty-three (j3) years without accounting .for the period spent on remand occosioning lo miscarriage of just ic e.

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#### Representation

[3]At the hearing, the appellant was represented by Mr. Naluswa Joshua on State brief. The respondent was represented by Mr. Semalemba Simon Peter, Assistant DPP.

## Submissions by Counsel for the Appellant

- [4] Counsel for the appellant sought leave to appeal against sentence only under Section 132(1Xb) of The Trial On Indictment Act Cap. 25 and Rules 2(2), a3(3) (a) ofthe Judicature (Court ofAppeals Rules) Directions, SI l3-10. - [5]Counsel for the appellant submitted that the sentence that was imposed by the trial Judge was manifestly excessive and harsh because he did not consider the time the appellant spent on remand. Counsel argued that it is mandatory under Article 23(8) of the Constitution of the Republic of Uganda and principle 15( 1) of the Constitution (Sentencing Guidelines for Courts of Judicature) (Practice Directions 2013), for the sentencing court to deduct the time spent on remand. Counsel cited Aharikundira Yustina Vs. Uganda, [20181 UGSC 49, where the Supreme Court held that consistency is a vital principle of a sentencing regime, and it is deeply rooted in the rule of law. - [6] Counsel submitted that the court is mandated to implement the principle of uniformity and consistency. Counsel cited Tushabe John Bosco Vs. Uganda, [2019] UGCA 2D42,wherethe appellant was sentenced to 22 years for defiling a girl ofthree and a halfyears. He submitted that the court deducted the 3 years spent on remand and the appellant had to serve 19 years' imprisonment. - [7] Counsel contended that the sentence of33 years was illegal for failure to take into account the period spent on remand by the appellant.

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## **Submissions by Counsel for the Respondent**

- [8] Counsel for the respondent did not object to the prayer, seeking leave of court to appeal against sentencing only. - [9] Counsel also acknowledged that the trial Judge did not take into account the period spent on remand. Counsel cited Mutebi Ronald Vs. Uganda CACA No. 383 of 2019(unreported), where it was held that any sentence passed without taking into consideration the time spent on remand is illegal and contrary to Article 23 (8) of the Constitution. Counsel invited this court to exercise its power under section 11 of the Judicature Act to resentence the Appellant.

# **ANALYSIS**

# **Role of the First Appellate Court**

- $[10]$ Under Rule 30(1) of the Judicature (Court of Appeal Rules) Directions, SI 13-10, the duty of this Court as the first Appellate Court is to re-evaluate the evidence on record and come to its own conclusions. This was re-echoed in Henry Kifamunte Vs. Uganda, [1998] UGSC 20. - $[11]$ It is trite law that the appellate court will not interfere with the discretion of the sentencing Judge unless it is proved that the sentence was illegal or that the sentence was manifestly excessive and harsh. In **Kyalimpa Edward Vs. Uganda, Criminal Appeal No.10 of 1995, the Supreme Court** referred to **R Vs. Haviland (1983) 5 Cr. App R(S) 109** and held as follows;

"An appropriate sentence is a matter for the discretion of the sentencing judge. Each case presents its own facts upon which the judge exercises his discretion. It is the practice that an appellate court, this court not normally interfere with the discretion of the

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senlencing judge unless the senlence is illegal andunless tle court is satisfed that the sentence imposed by the trial judge was manifestly so excessive as to amount to an injustice. "

tl2l It is not in dispute that the trial Court omitted to take into account the time spent on remand. This is what the Court stated while sentencing;

> "The occused defiled a young boy and injured his specters in the anus. He f;nds it hard to contain his feaces. This problem has persisted, as he informed the court. His life will never be the same. Consideringthe age ofthe convict, who looks to be in his early 50s, a sentence ofj3 years in prison will be appropriate. There is a need to keep him away from the presence ofyoung boys to protect them from possible sodomy.

I accordingly sentence him to 33 years' imprisonment.

Right of appeal explained. "

t13l Article 23(8) of the Constitution of the Republic of Uganda 1995' requires the sentencing court to consider the remand period in the following terms:

> "where a person is convicted and sentenced to a lerm of imprisonment for an olfence, o4v period he or she soends in law.ful tn rcs (' nce be re lion o his or he als inlo accou s/ the te imprisonmen1. " [emPhasis added]

t14l The principle was re-echoed in Rwabugande Moses Vs. Uganda' (supra), though by 2016, the arithmetic deduction of time spent on remand was not operational. The position of the law was stated in Kizito Senkula Vs. Uganda, [20021 UGSC 36, where the Supreme Court held that Courts ought to take into consideration time spent on remand. Having found that the trial

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Judge did not consider the time spent remand, we set it aside and we invoke the provisions ofsection 11 of the Judicature Act, which grants this court the same powers as the trial court to impose a sentence on the appellants that we consider appropriate in the circumstances.

- [ 5] In our endeavor to pronounce an appropriate sentence, we are mandated to consider both mitigatin g and aggravating factors presented at the trial. The sentencing Guidelines suggest in part I of the third schedule, a sentencing range for aggravated defilement of 35 years to the maximum of death, after aggravating and mitigating factors have been considered. - <sup>t</sup>16] We shall, in addition, consider the principle of consistency expounded in Paragraph 6(c) of the Sentencing Guidelines, which enjoins the court to consider sentences imposed in previous trials and appeals with similar facts. The Supreme Court in Aharikundira Yustina Vs. Uganda (supra), expounded on the principle when it held that;

"It is the court, while dealing with appeals regarding sentencing, to ensure consistency with cases that have similar Jacts. Consistency is a vital principle of o sentencing regime. It is deeply rooted in the rule of law and requires lhat laws be applied with equality and without unjustifioble dffirentiation. "

- U7) In Byaruhanga Okot Vs. Uganda, CACA, No. 078 of <sup>2010</sup> (unreported), it was held that the court is bound to follow the principle of parity and consistency while sentencing, bearing in mind the circumstances under which the offence was committed. - [18] In Okello Basil Mugenyi Vs. Uganda, [2023] UGCA 128, this court confirmed a sentence of 32 years' imprisonment where the appellant defiled his niece. In Benywanira Emmanuel Vs. Uganda, 120231 UGCA 339, this

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Court upheld a sentence of 32 years' imprisonment, holding that it was legal.

- [19] We have taken into consideration the facts ofthis case and aligned those against the previous decisions with similar cases. We have also noted what was presented for both the appellant and respondent during the allocution proceedings. We are mindful of the sentencing range suggested in the sentencing guidelines. Having done so, we find that a sentence of30 years' imprisonment is appropriate. - l20l Having sentenced the appellant to 30 years, we deduct 3 years, <sup>9</sup> months and 16 days spent in lawful custody. The appellant shall, therefore, serve 26 years,2 months, and 14 days from the date of conviction.

We so Order

| tr<br>Dated and delivered this<br>day of ^l,k(l't.,2025 | |---------------------------------------------------------| | | | HELLEN OBURA | | JUSTICE OF APPEAL |

I

CHRISTOPHER GASHIRABAKE JUSTICE OF APPEAL

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