Dhewume v Uganda (Criminal Appeal 141 of 2016) [2023] UGCA 306 (1 November 2023)

Full Case Text

# 5 THE REPUBLIC OF UGANDA

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

(Coram: Il Chcborion, JA, C. Gashirabake, JA, O. Kihika, JA.)

### CRIMINAL APPEAL NO. OI4I OF 2OI6

(Arising.from Criminal Session No. I ICT-00-CR-CS-345/20 I 2)

IltlTWIlllN

DIIEWIJME AI}DALLAII API'I],LLANT

#### ANI)

#### UGANDA IIESI'ONDEN'I-

(Appeal from the Judgment of the Iligh (iturt o./ Uganda I lolden ut Jinja, hy Basaza, . L delivered on 2uth Juty 20I 6) 15

## . Il.]IX;M Ft N't' OF ]'t IFl, COt-l ll'[

#### Introduction

l.] 1'he appellant was charged with one count of murder contrary to sections 188 and 189 ofthe Penal Codc Act.

2.| Briefly, the appellant lived in the same village with Mwasc Musa (thc deceased), Kalera Isima (the deceased's son), and Kwaturira Madina (thc deceased's wifc) at Kibugo zonc in thc Buyendc district. Prior 1o thc l3th day ofAprit 2012,the appellant hatched a plan to kill the deccased and introduced the same to thc deccascd's sons including Isima Kalera, Kairuku Yusuf, and Baganz.i Isaac. On l3'r'April 2012,,thc appellant hit the dcccased's head with a hoc and thc other 3 assisted him in cutting thc body into pieccs, stuffed it in apolythene bag, and put it in a hole thcy dug inside his house. 'l'he body was kept there till cvening. At about 8.00 p.m. of thc samc day, thcy all carricd thc body towards a swamp! dug a pit, and disposcd ol' it alongsidc thc

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- 5 dcccased's bicycle and gum boots. Alter thc deceased went missing, his second wifc Maimuna reported to the authorities who mounted a fruitless search. Due to a grudge that existed between the deceased and his sons, the residcnts suspected thcm, causing them to flec the village. About four days later, Isima Kalera (PW2) retumed home at night and was arrested. Upon his arrcst, he conlessed to having participated in the murder ofhis father together with the appcllant and his 2 brothers (the fugitives). tle lcd policc to recover thc deceased's body, his gum boots, and a bicyclc. Further Investigations lcd to the arrcst o[ the appellant and Kwatulira Madina (PW2's mothcr/deccascd's l '' wifc). 'I'he three were subsequently charged with murder. When the case came up for hearing on the 5th of November 2014, charges wcre withdrawn from Madina by way of a Nolle Prosequi. Isima Kalcra admittcd thc oflence and entered into a plea bargain arrangement and was sentenced to 20 years' imprisonrnent. 'l'he appellant denied the charge and on 1613120l6 he was arraigned belore the Court. IIe pleaded not guilty and subsequently underwent a lull trial. To prove its case, the prosecution adduced evidcnce lrom 3 witnesses and documentary exhibits belore closing its case. Upon finding that a prima facie case had been made out against the appellant, he opted to change his plea and pleaded guilty. I-Ie was convicted on his own plea and sentenced to imprisonment lor lifle.'lhe appellant was aggrieved by both conviction and sentence hence this appeal. - 3.1 Thc appellant being aggrieved with the decision of the Fligh Court lodged an appcal in this Court. 'l'he appeal is prcmised on two grounds set out in the Memorandum of Appeal as follows; - l. T'hat the learned tial Judge erred in lmt' and in .fact v,hen he tttnvitttd llta ultptllunt on hi:; otrn ltlcu ol gtrill.t'ttithout .lttllovitr the duc ytrocas.s

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2. That the learned rrial .ludge erred in law and./itct in passing an i I le ga l. man i fe s t ly har s h, a nd e xc e s.s ive .r e nt e nc e.

#### Rerrrcsentation

4.] At thc hearing of the appeal, the appellant was rcprescnted by Mr. Nappa Geoffrey. 'l'he rcspondcnt was represcntcd by Ms. Nabasa Caroline l{ope, Principal Assistant DPP.

#### Ground onc

That the lcarned trial .ludge erred in law and in fact whcn hc convicted thc appcllant on his own plca of guilty without following thc due process.

#### Submissions by counsel for the Appellant

- 15 20 5.1 lt was submitted lor thc appellant that according to thc rccord ol appcal, it shows that alter thc prosccution had closed its case and thc matter was coming up for hearing ol the defense case, counsel for the appcllant informed thc Court that the appellant was desirous of changing plea liom not guilty to guilty. Thc Court went ahead to read for the appellant the indictment which the appellant is said to have understood. Ilowever, the appellant went on to add some statemcnts saying that he never had any lwins with the deccased's first wife. - 6.1 It was submitted for the appellant that the plca raiscs two issues; first, aftcr the indictment had been rcad back to thc appcllant and said to have admittcd, in counsel's view it was imporlant that all thc particulars of the ollcncc would be explained back to the appellant and facts equally read back to him to ensure that he had properly understood thc chargc. Ilowever, the rccord simply shows that only thc indictment was rcad back.

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- 5 7.] It was further submittcd that as a matter of law, it was required that the trial Judgc followed the plea taking procedurc to thc letter. The fact that the appellant had first pleaded not guilty to the offence and then changed their plea, docs not takc away the standard proccdure in plea taking. Counsel citcd Adan Vs. Republic (1973) E. A 446 - 447 cited in the case ol Nsubuga Ali a.k.a. Cobra Vs. Uganda, Criminal Appeal No. 276 of 2017 and the case of Oroni Basil Vs. Uganda, Criminal Appeal No.0l42 of 2018. - 8.] It was argucd that from the foregoing, it is the appcllant's understanding that the rationale behind this principle is to ensure that an accused person is properly convictcd on his own plea. It is cvidcnt from the rccord that the particulars and facts of the case were never read back to the appcllant for him to plead to, rather thc record shows the Court noting that the appellant is hercby convicted on his own plea of guilty. Counsel submitted that the facts of this casc are similar to those in Oroni Basil Vs. Uganda Criminal Appcal No.0I42 of 2018 at page 4, - 9.] It was submitted that the trial Judge having failcd to follow due process in taking plca, the scntencc was illegal. This should not be sanctioned by the Court. This was the position in the case ol Makula International Ltd. Vs. His Eminence Cardinal Emmanuel Nsubuga and Rc. Fr. Dr. Kyeyune CACA No. 04 of 1981 or 1982 HCII l l that;

"1 courl of lau, cannol sunclion u,hut is illegal, orul illegulity once brought to thc attention oJ L'ourt overrides ull tluestion o/ pleadings, including any aclmissions made lhereon and lhe courl connol sanclion an illegulity".

l0.l Counsel prayed that this court is pleased to quash the said conviction and set aside the sentence.

#### Submissions by counscl for the resrrondcnt

#### I)rcliminary points

II .] Counsel for the respondent sought to clarily the record of appeal.

a) On the 27th of April 2023, the respondent received an online service of Record of Appeal (ROA) from the Court, and upon perusal, it was established that the same was incomplete as it missed all the evidence of prosecution witnesses who testified before the appellant's changc of plea. '[his was reported to the registry and the appellant's counsel was also notified. The first ROA is properly indexed and paged (ROA - Vol l).

b) On 31" May 2023,, the respondent received an online service of the missing records. 'fhe same was not paginated and so, I'or case ol reference, counsel for the respondcnts have manually pagenated it lrom pagcs I to 50. (ROA - Vol 2).

12.) 1'urning to the merits of the case, it was submitted that the appellant first took plea on the l61h of March 2016. Iloth rccords confirm that the charges wcre read to him, he understood and denied the charge and stated "1 have understood it but I did not commit ir." From l6'h March 2016 to 7th April 2016, 3 prosecution witnesses testilled giving dctails ol how the appellant was involved in the murder and his specific participation. In fact, the appellant had an opportunity to conf'ront the witnesses which he properly cxerciscd by cross examining them. He was at all timcs legally represented. 'Ihe testimony of PW2 gaye a chronological account ol what transpired during the commission of the offence and the appellant's participation. Upon reading the charges afresh to him, the appellant replied "l understand the ofence, it is true I did it."

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- 5 13.] It was contended that the facts of the case which were material to the chargc against the appellant had already been clearly brought out in evidence against him as pointed out above. Counsel submitted that they were mindful of the procedure laid down in the Adan Case cited by the appellant but contendcd that this case presents peculiar circumstances where the change of plea came after the closure of the prosecution case. It was submitted that the appellant's change ol heart to confess was a result of appreciating a case against him and he perlectly understood what he was doing. Therefore, the issue at hand is "whether "not reading thefacts" tct the appellant at the stage amounted to a miscarriage ofjustice!" In the counse l's view, failure to read thc lacts back to him as complained about is a technicality curable under Article 126 olthe 1995 Constitution. "l'his is consistent with Section 139 of the Trial on Indictments Act, Cap 23. 10 15 - 14.1 It was argued that for justice to prevail in this matter, this Court is required to interrogate the question as to "whether the error of not reading the Jbcts to the appellant who had heard and cross examined prosecution witnesses about the .facts and evidence against him, had in fact, occasioned a fai lure/ mis carr iage oJ'j us t ice ". - 15.] A rniscarriage of justice is defined to mcan:

"a grossly unJitir outcome in a judicial proceeding, as when a delbndant (accused person) is convicled despite a lack o.[ evidencc on an essential element of the crime ". (Bryan A. Garner, Black's Law Dictionary 8'h Edition Thomson ll/esl Publishers ot page I0l9

16.] -l-he question thercfore is to determine whcthcr the lailure to read the lacts caused a miscarriage ofjustice. Counsel prayed that this Court answers

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5 this in the negative and finds that there was no miscarriage ofjustice at all and that this was simply a technicality.

- 17.) Counsel submitted that thc rule set out in Adan is advisory/a guidc and not mandatory, thus giving courts of record a chance to develop jurisprudence on a case to case basis. Counscl prayed that this Court should be pleased to find that the skipping of one step sct up in Adan case, Supra, in lhc circumstances ol thc instant case, is neither detrimental to the appellant's right to a lair trial nor a miscarriage ofjustice. - 18.] It was submittcd that counsel lor thc appellant complaincd that morc facts concerning the twins allegcdly sired by the appellant, wcre new facts assened in his explanation during plea taking, which should have caused doubt as to whether hc intended to plcad guilty. With duc rcspcct, this line of argument is devoid of merit as the issue of twins was immaterial since the Court was trying a murder charge and not a patemity case. lt was contended that had the Court considered thc issuc to havc had an cffbct on thc matter, then, it would requirc the Court to record a plea of not guilty and set the casc for hearing. I-lowever, the same case had alrcady becn hcard and the prosecution had closed its case. Re-opcning the samc case at such a stage would bc absurd and an injustice to the prosecution. - 19.] In specific reply to the counsel's submission with regard to the casc ol Oroni Basil Vs Uganda, Criminal Appeal No.0I42 of 2018, the counsel submittcd that thc lacts in thc case ol'Oroni are distinguishable. Counsel submitted that in Oroni's casc, it was a plea bargain that he had negotiatcd while still at police bclore the l{egional Police Comrnander. C)n appeal, thc Court lound that thc provisions olthc law under 5.60-63 of thc TIA wcrc not tbllowed thus a rctrial was ordcred. Counscl contended that in this instant case, the relcvant scctions of thc law were followcd save for thc reading of

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- 5 facts to the appellant after full trial and upon change of plea as already argued above. - 20.1 It was reiterated that this is a matter where an error in procedure, if any, can be cured as it did not occasion a miscarriage ofjustice to the appellant's detrirnent.

#### In the altcrnativc and without prejudice to the foregoing; 10

- 2l .l Counsel submitted that,, in the unlikely event that this honourable Court will agrec with thc appellant on ground l, the case bc revcrtcd to Court so that thc facts can bc read to him ilhe still maintains a guilty plea for purposes of re ctilying the error. - 22.1 Counsel praycd that this appeal should fail. 15

### Consideration of Court

- 23.] 'l'his being a first appcllate Court, it has a duty to re-evaluatc the cvidcnce, weighing conflicting cvidence, and reach its own conclusion on the evidence, bearing in mind that it did not see and hear the witnesses. According to Rule 30(l)(a) of the Judicaturc (Court of Appeal Rules) Dircctions S. I l3-10. - 24.) ln Kifamunte v Uganda Supreme Courl Criminal Appeal No. I0 of 1997 court stated that:

We ugree that on the./irst appeal,./iom u conviction by a Judge, the appellunt is enlitled to hale thc appellate (:ourl'r' own considerution and vicws ofthe avidence as a u,hole and its own decision thereon. T'he./irst appellate court has a duly to revieu, the evidence efthe case and h reconsider the materials beJbre tha lrial.iudge. l'he appellate (:ourt musl lhen make up ils own mind rutt disregarding thejudgment

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Scc also the cases ol Ptndya v. R ll957l EA 336, Bogere Moses v. Ugando SCCA No. I of 1997. It has thc samc effcct.

- 25.) Considering the burden of proof and standard of proof in Criminal cases and based on the presumption ofinnocence enunciated in Article 28(3) of the Constitution ofthe Republic ofUganda 1995, an accused person can only be convicted by a court of law on the strength of the prosecution case and not on the weakness of the defense case. - 26.] The law on the procedure on taking a plea of guilty is well stated in Adan vs. R(Supra) where thc court held that;

"When a person is charged, the churge ond the particulars should be read out to him, so.far as possible in his own language , hut if that i.s not possible, then in a language which he con speak and understand. T'he ,nagislrate shoultl then explain lo lhc accuscd pcrson ull the essenlial ingredients of the o/fence charged. I/'the accused then admits all those essenlial elemenls, the mogislrate should record what the accused has said, as nearly as possible in his tnvn words. and then.fbrmally enler a plea of guilty. l'he magistrate should next usk lhe proseculor lo slole lhc Jbct.r of the alleged ofibnce ond, v,hen the.\talement is complele. should give lhe occused on opportunily to dispule or explain the.fticls or odd any relevant.fitcts, i/ the accused Lloes not ugree with the statcment of fitcts or asserls addit ktnal .facts which, i/ true. mighl ruise a queslion as lo his guilt, the mogislrate should record a change o./ plea to nol guilly und proceed to hold o trial. "

27.) During the hearing the appellant pteaded not guilty lrom thc onset. 'l'he prosecution led thcir evidence through three witnesses. 1'he appellant had an opportunity to cross examine the witnesses which he actually did. After the

closure of the prosecution case, and the Court found that the prosecution had made a prima facie case against the appellant, his counsel informed the Court that the appellant was desirous ofchanging his plea. The court then read the statement of facts as follows;

" Dhewume Abdallah 32 yeurs a resident of Budoliyo, lrundu, Kagulu Sub Counly. Buyende l)istrict. You are charged wilh lhe oJfence oJ' murder ofa person, you and others slill al large, on l3'h April 2012 in Kibugo Zone, in lluyende district, you killed Mwase Issa contrary to sections 188 & 189 of the Penal Code lct. l)o you understand the churge? is il lrue or fulse? "

#### Accused

I undersland lhe offence; it is lrue I did il.

Courl

ll/hal is lrue?

#### Accused

I murdered Mv,ase lssa as charged befttre this honourable Court. "

- 28.] We believe the essence of reading of the statement and particulars of the case to the appellant is to secure the unequivocal plea of the appellant after ascertaining that he understood what he is pleading to. 'this is to cstablish whether the Court and the appellant are having the same mind about the plea. - 29.1 We acknowledge the fact that the procedure in Adan was not followed to the letter, should we say that the learned Justice, by not strictly following procedure (according to Adan set rules), to wit, not reading the facts, which the appellant had already heard and understood prior to being asked to defend himself, resulted into a grossly unfair outcome in the judicial proceedings and thus amounted to a serious miscarriage of justice? Ihe 'frial on Indictments Act gives room to Courts to uphold decisions even when there was a erto,

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during the proceedings as long as it does not lead to a miscarriage of justice. Section 139 of the Trial on Indictment Act provides that;

> "Subject to the provisions of any written law, no finding, sentence or order passed by the High Court shall be reversed or altered on appeal on account of any error, omission, irregularity or misdirection in the summons, warrant, indictment, order, judgment or other proceedings before or during the trial unless the error, omission, irregularity of misdirection has, in fact, occasioned a failure of justice".

In the circumstances of this case, the pertinent question for this Court $30.1$ to interrogate then is, whether considering section 139 of the Trial on Indictments Act, the omission by the trial Judge to explain the ingredients to the appellant caused a failure of justice to the appellant so as to necessitate quashing the conviction and set aside the sentence.

We note from the record of appeal, and as quoted above that as the $31.1$ Court read the statement to the appellant he seemed not confused as to what was being stated. He demonstrated that he understood and in his own words stated that he was guilty as charged by the Court. As observed earlier this plea was changed after the prosecution had closed its case against the appellant. The appellant was legally represented and his counsel did not protest to the fact that the appellant did not understand what was being said. The procedure in **Adan** *supra*, ought to be understood in the context that it is intended to ensure that Courts accepting the plea of guilt are satisfied that the same has been entered consciously, freely, and in clear and unambiguous terms as was observed in Elijah Njihia Wakianda Vs. R., Kenya Court of **Appeal Case No 437 of 2010 cited by** Counsel for the Respondent. In the instant case, when the court was ready to listen to the appellant's defense, the latter decided to confess to his guilt. Any ambiguity in the change of

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- appellant's mind, if any, was cleared when the court probed into the meaning of what the appellant had said and the latter clarified that"l murdered Mwase Issa as charged before this honorable Court." - 32.1 We note that even though there was an omission to explain to the appellant thc ingredients of the offence of murder it was neither detrimental to the rights ofthe appellant nor did it occasion a miscarriage ofjustice. - 33.1 'l'his ground fails.

## Ground 2

That thc lcarncd trial .ludge errcd in law and fact in passing an illcgal, manifestly harsh, and cxccssive scntencc.

#### Subrnissions bv counscl lirr lhc Appcllant 15

- 34.1 It was submitled lor the appellant that the sentence was manifestly harsh considering the circumstances of the case. Counsel cited Kamya Johnson Wavamuno vs. Uganda, SCCA No. 16 of 2000, and Kyalimpa Edward vs. Uganda, SCCA No. I0 of 1995, which are of the same ef lect. 'l.hey hold that the court will not interfere with a sentence unless the trial Court has acted on wrong principles or overlooked a material factor or where manilestly cxcessive or too low to amount to a miscarriage oljustice. - 35.1 Belorc any Court of law reaches the conclusion on thc sentence to be passcd, the Court is under obligation to take into consideration both the mitigating and aggravating factors. In the case of Aharikundira Yusitina vs.

Uganda SCCA No 27 oI 2015, it was held that:

"hefitra u convicl can be sentenced, the trial court is obliged to cxercise ils discrelion by considering nrcliculously ull thc mitigaling .fictors und olher prc-.\enlencing requiremenl,r os clucitlutcd in lhe

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constilution, slalules, proseculion direclions logether u, ilh generdl principles oJ sentencing as guided by cuse lov"'.

- 36.] It was submitted that thc appellant was at the time aged 35 years when he committed the offence. There is no doubt that the appellant was a very young person with a bright future which fact the trial Judge ought to have taken into consideration. That much as the appellant took a tife and he indeed confessed and prayed lor forgiveness, hc deserves another chancc. 'l'he appellant had many dependents to be precise 8 children plus his elderly 2 parents who all depended on him. 'l'he appellant himself also went on to state that since he admitted the offence, and he was a I'r time offender he prayed for lcniency. - 37.1 Counsel submittcd that with a life sentencc it means that as per the sentence passed by the trial Court, the appcllant will nevcr have a chance to leave the prison as he has to scrve the sentcnce for thc rcst of his natural lifc. - 38.] The Constitution (Sentencing Guidelines for Court o1' Judicature) (Practice) Directions provide for thc starting point in sentcncing for murdcr as 35 years and a maximum of death. 'l'his is in line with what the prosecution proposed. Counsel prayed that this Court invokes its power under Section 1l of the Judicature Act, sets aside the sentence by the Fligh Court, and sentencc to appellant to a sentence it deems fit. - 39.] Counsel prayed that the principle of consistency provided for under Guideline No. 6(c) of the Constitution (Sentencing Guidelines), should bc flollowed. He cited the case of Tusingwire Samuel Vs Uganda, {20I6} UGCA 53, which citcd thc casc of Manige Lamu Vs. Uganda, Court of Appeal, Criminal Appeal No. 384 of 2017, where this Court found the sentence of life imprisonment imposed against the appellant for the offencc of murder, harsh and manifestly excessive, and reduced the sentence to 30 25 30

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- years' imprisonment. Counsel also cited thc casc of Atiku Vs. Uganda {2016} UGCA 20, which cited the case of Manige Lamu Vs. Uganda (Supra) where the appellant was convicted ofthc olfence of murder contrary to sections 188 and 189 ol thc Penal Code Act, and sentcnced to life imprisonment. On appeal, this court reduced the sentence to 20 years' imprisonme nt. - 40.1 In Rwabugandc Vs. Uganda, Supremc Court Criminal Appeal No. 25 of 2014, cited the case of Anguipi Isaac Alias Zako Vs. Uganda, Criminal Appeal No. 282 of 2016, where the Court of Appeal had sentenced thc appcllant to 35 years in custody for murder, on appeal to the Supreme Court, the Suprcme Court reduced the sentence to 2l years. - 4l.l Counsel submittcd that the sentence of imprisonmcnt for life in the circumstanccs would bc extrernely harsh and that this Court be pleased to sct asidc and substitute it with a more lenient scntencc.

## Submissions for thc respondent

- 20 42.1 Counscl for the respondent submitted that counsel for the appellant rightly cited the principlc cspoused in Kyalimpa Edward V. Uganda, Cr. App. No. l0 of 1995 that has been followed subsequently in other celebrated cascs including; Kiwalabye Ilernard Uganda, (SC Cr. App. No. 143 of 2001), Kariisa Moscs Vs Uganda, SC Cr. App. No 23 of 2016 et al. Counscl underscored the fact that on the issue of " manifestly excessiveness", thc Court ought to look for the catch point which is the resultant effect, that is to say; "amounting to an injustice" or "a miscarriage ofjustice". 25 - 43.1 It was contended that the said catch points ought to be envisaged in the circumstances of the case to warrant the appellatc court's interference with the sentencc. Iror this case, counsel needed to demonstrate how the sentence

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complained against amounted to an *injustice that led to a miscarriage of* justice.

$44.1$ It was submitted that counsel for the appellant failed to demonstrate how imprisonment for life was illegal and excessive when the maximum sentence was the death penalty. Citing with approval the case of **Ogalo S/O** Owoura Vs R [1954] 24 EACA 270), the case of Aharikundira Yustina VS Uganda, Criminal Appeal No. 104 of 2009, held that;

"Interfering with sentence is not a matter of emotions but rather one of law. Unless it can be proved that the trial Judge flouted any of the principles in sentencing, then it does not matter whether the members of this court would have given a different sentence if they had been the ones trying the appellant. In the instant case, the trial Judge had the opportunity to hear the case and watch the appellant and all the witnesses testify. In his wisdom, he found that the most appropriate sentence was death. Without proof that this discretion was biased or unlawful, this court would have lawful means of interfering with the same".

Counsel for the respondent further argued that counsel for the appellant $45.]$ alluded to the fact that by entering a plea of guilt, the appellant was remorseful and did not waste the Court's time. Counsel for the respondent contended that the record reveals that the appellant changed plea after the Court and the State in general had spent both time and financial resources. So his change of plea cannot be construed as remorsefulness but rather guilty consciousness of knowing that the truth against him had been proved. Counsel for the respondent further argued that even if that was to be credited to him in mitigation, still he being the author and implementer of such a heinous crime deserved to spend the rest of his life in prison. He was spared the maximum sentence and therefore a less severe sentence was most

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5 appropriatc in thc circumstanccs and as such does not qualify to be adjudged cxccsslvc.

- 46.) In advancing the consistency argument, Counsel cited a few cases whcrc appellate Courts have rcduccd sentences claiming similarity. With the instant case, counscl lor the respondent contended that no single case is ever similar to thc other, and in all those cases counsel for the appcllant cited, nonc ol thcm had cxact lacts and calculatcd movcs similar to those rnadc by thc appellant in the instant case. lt was argucd that the Cou( should be guided by dccisions where a death sentence and imprisonment lbr lifb were appropriate. Sec Rwalinda John vs. Uganda, SC Cr. App. No. 3 of 2015 whcre lile imprisonment was upheld twice by this court and Supreme Court, Sekandi Hassan Versus Uganda, Cr. App. No.86 of 2015, this Honourable court dismissed thc appeal and confirmed thc Death sentence for a gruesomc murdcr. Likcwisc, in Kato Kajubi Vs. Uganda, SC Cr. App. No 20 of 2014, a scntcncc of lifc imprisonment was upheld. It was the counsel's contention that the instant case lalls squarely within the catcgory of the cases that deservcd a maximum sentence, and therclorc submitted that the Court was instead too lenient to save thc appellant the maximum pcnalty but found the second most sevcrc sentence most appropriate, given the prevailing circumstanccs. - 47.1 It was argued that the leamed trial Judge considered all the factors and judiciously exercised her discretion to find imprisonmcnt for lifc appropriatc undcr thc c ircumstances. - 48.] In conclusion, counscl submitted that the circumstances of this case descrved a dcterrent sentence rather than reformatory as advanced by the 30 appellant. It was prayed that the appeal bc dismissed and both conviction an sentcnce be upheld and confirmed respectively.

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## s Considcration of Cou rt

49.) The Supreme Court has laid down the principles upon which an appellate Court should interf-ere with the scntcncing discrction of the trial Court, in Kyalimpa Edward vs. Uganda; Suprcmc Court Criminal Appeal No.l0 of 1995, the Court relied on R vs. Haviland (1983) 5 Cr. App. 10 R(s) 109 and hcld that:

> "/n appropriule sentence is a matter ./br the discretion q/ the senlencing .iudge. liach case presenls its oy,n.focls upon v'hich a .iudge exercisas his discretion. lt is the practice lhot as dn appellate courl, lhis court will not normally inler/-ere v,ilh lhe discretion o/ tha senlencing judge unless lhe sentence is illegll or unless lhe courl is sutis.fiad that the sentence imposed by the lrial .i,tdge u'as monifesll)' so excessive ds lo amounl lo an iniuslice. Ogalo s/o Owoura vs. R (1954) 2l E. A. C. A 126 ond R vs. MOIIAMEDALI J^MAL (1948) r5 E. A. C. A 126."

# 50.1 In Kiwalatryc vs. Uganda, Supreme Court Criminal Appeal N0.143 of 2001 it was hcld:

'"|'he appellale courl is not to interfere wilh senlence imposed by a lrial courl u'hich has exercised its discretion on senlences unless the cxercise of the discretion is such lhdt the lriol courl ignorcs lo consider on imporlonl motler or circumslances v,hich ought to be considered u'hen passing the senlence."

principlcs or lcad to a miscarriagc ol'justicc. 5l.l 'Ihe case must prescnt facts that warrant the Court to interlerc with the discretion of the Court. Otherwise, the appellatc Court will uphold the trial Court's sentence as long as the Court did not fault any ol the sentencing

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- 5 52.) As to whether the scntence is harsh and exccssive, this varies from case to case. Even when the case has similar facets, each case carries a unique identifier that guides the Court to pass an appropriate sentence. The Coun passes thc scntence after considcring all factors of the case. 'l'here is no weighing scale of what amounts to excessive save that the Court is guided by the fact that the sentence neither amounts to an injustice nor a miscarriage of justice. - 53.l Considering thc similarity in facts, in Kato Kajubi vs. Uganda (Supra) relerred to by counsel for the respondent, the Supreme Court upheld the sentence of life imprisonment having considercd the gruesome way the victim was murdcred. Additionally, in Ssekawoya Blasio, SC Criminal Appcal No. 24 OF 2014, the Appellant was imprisoned for life for the premeditated murder of his three children. In Turyahabwe Ezra and l4 others vs. Uganda, SCCA No. 50 of 2015, this Court and the Supreme Court a. upheld a life imprisonment sentence against some of the Appellants who were convicted of murder. Lastly, in Sunday vs Uganda, CACA NO. 103/2006 ? the Court of Appeal upheld a sentence of lile imprisonment for a 35-year-old convict who was part ol a mob that attackcd a dcfenceless elderly woman until they killed her,

54.1 While sentencing thc Judge is to be guidcd by both the mitigating and aggravating factors in making the sentencing decision but they arc not binding on the Court. In mitigation, the appellant was remorseful, was a first time offender, and had 8 children and 2 elderly parents to take care of. For aggravating factors, murder attracts a maximum penalty of death, the death was pre-meditated, deceased sustained repeated injuries both on the body and head. The deceased was suffocated to death in a polythene bag. Deadly wcapons, that is a hoe and a small panga were uscd.'I'he accused influenced

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the children against the father and there was an attempt to conceal the evidence. The appellant only pleaded guilty after considering the strength of the evidence of the prosecution against him.

- In our own analysis after considering both the mitigating factors and $55.1$ the aggravating factors together with previously decided cases, we find that the life sentence in the circumstances of this case was appropriate. - $56.]$ This ground fails - Consequently, the appeal fails. 57.] - The Orders of the lower Court are upheld. $58.]$

## We so Order

| 15 | 2023 . day of Dated at Kampala this | |----|-------------------------------------------| | | | | | CHEBORION BARISHAKI | | | JUSTICE OF APPEAL | | 20 | $-$ CHRISTOPHER GASHIRABAKE | | | JUSTICE OF APPEAL | | 25 | OSCARJOHN KIHIKA | | | JUSTICE OF APPEAL |

$\mathsf{S}$