Gheewala v Uganda (Criminal Appeal 175 of 2024) [2025] UGHCCRD 7 (14 February 2025)

**THE REPUBLIC OF UGANDA**

**IN THE HIGH COURT OF UGANDA AT KAMPALA**

**(CRIMINAL DIVISION)**

Criminal Appeal No. 175 of 2024.**CRIMINAL APPEAL NO. 175 OF 2024.**

**(Arising from LDC Court Criminal Case No. 0240 of 2020)**

**GHEEWALA SHARDUL::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::APPELLANT**

**VERSUS**

**UGANDA::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::RESPONDENT**

**JUDGEMENT**

**BY JUSTICE GADENYA PAUL WOLIMBWA**

**Introduction**

Gheewala Shardul, hereinafter called the Appellant, was charged with theft contrary to sections 254 (1) and 261 of the Penal Code Act. The prosecution alleged that the Appellant, between 18/4/2019 and 30/4/2020, being an employee of Nile Agro Industries, stole flour, cooking oil and soap valued at UGX 624M, his employer's property. The Appellant was tried and convicted. He was sentenced to three years’ imprisonment and ordered to pay compensation of UGX624M to the complainant seven years after the completion of the serving sentence.

The Appellant, who is not contesting the conviction, is aggrieved by the sentence of the Trial Magistrate. He filed a Memorandum of Appeal. The grounds of Appeal are:

1. The Learned Trial Magistrate erred in law and fact when he imposed an illegal sentence without considering the period spent on remand. 2. The Learned Trail Magistrate erred in law and fact when he imposed a manifestly harsh and excessive prison sentence of three (3) years with a compensation of 624,000,000/= (Six hundred twenty-four million shillings) within seven (7) years against the appellant.

The Respondent did not respond to the grounds of appeal.

**Submissions of the Appellant**

In the first ground of appeal, the Appellant contends that the Trial Magistrate erred in law by never deducting the period he had spent on remand from the sentence. He claimed that the Magistrate violated Article 28 (3) of the Constitution Regulation 15(2) of the Sentencing Guidelines and the Supreme Court decision in Rwabugande vs Uganda (Criminal Appeal 25 of 2014) [2017] UGSC 8, which held that the sentencing court should mathematically deduct the period spent on remand from the sentence.

In the second ground of appeal, the Appellant is aggrieved by a custodial sentence of three years imposed on him by the Trial Magistrate. Given his mitigation, he submitted that the Trial Magistrate should have sentenced him to a non-custodial sentence. He said that he is a first offender, has a young family, suffers from Hypertension and has committed to paying compensation to the complainant. He noted that these mitigation factors would have entitled him to a caution/discharge since he had been ordered to pay compensation.

The Respondent was allowed to reply to the Appellant but did not file written submissions. This decision will, therefore, not benefit from the input of the Respondent.

**Consideration of the Appeal**

**Ground 1:** The Learned Trial Magistrate erred in law and fact when he imposed an illegal sentence without considering the period spent on remand.

Article 28 (3) of the Constitution provides that:

*Where a person is convicted and sentenced to a term of imprisonment for an offence, any period he or she spends in lawful custody in respect of the offence before the completion of his or her trial shall be taken into account in imposing the term of imprisonment.*

The Supreme Court has interpreted the provisions of Article 23(8) of the Constitution in the following decisions.

In Bashir Ssali v Uganda [2005] UGSC 21, the Supreme Court held that:

*By virtue of clause (8) of Article 23 of the Constitution, a trial court when sentencing a convicted person is required to take into account, any period the person spent in lawful custody. In this case the trial judge does not show that she took into account the period of four years between 17/3/1997 and 18/7/2001 spent by the appellant in lawful custody before he was convicted. In a series of decisions in similar circumstances, we have on our own motion corrected the sentence. See****Sebide Vs Uganda****(Criminal Appeal No.22 of 2002 (SC) (Unreported) and****Kabwiso Issa Vs Uganda****- Criminal App*

In Rwabugande vs Uganda (Criminal Appeal 25 of 2014) [2017] UGSC 8, the Supreme Court held that:

*And yet****Article 23 (8) of the Constitution****provides:*

***Where a person is convicted and sentenced to a term of imprisonment for an offence, any period he or she spends in lawful custody in respect of the offence before the completion of his or her trial shall be taken into account in imposing the term of imprisonment.****(Emphasis mine)*

*A sentence arrived at without taking into consideration the period spent on remand is illegal for failure to comply with a mandatory constitutional provision.*

*We therefore find that in re-evaluating the sentence, the learned Justices of Appeal erred in failing to take into account the period the appellant had spent on remand and instead upheld an illegal sentence.*

The court continued to say:

*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 subtracting that period from the final sentence. That period spent in lawful custody prior to the trial must be specifically credited to an accused.*

*We must emphasize that a sentence couched in general terms that court has taken into account the time the accused has spent on remand is ambiguous. In such circumstances, it cannot be unequivocally ascertained that the court accounted for the remand period in arriving at the final sentence.*

***Article 23 (8) of the Constitution (supra)****makes it mandatory and not discretional that a sentencing judicial officer accounts for the remand period. As such, the remand period cannot be placed on the same scale with other factors developed under common law such as age of the convict; fact that the convict is a first time offender; remorsefulness of the convict and others which are discretional mitigating factors which a court can lump together. Furthermore, unlike it is with the remand period, the effect of the said other factors on the court’s determination of sentence cannot be quantified with precision.*

Article 28 (3) of the Constitution, as interpreted by the Supreme Court, emphatically directs courts to deduct the period spent on remand from the sentence mathematically.

However, the lower court's record does not show that the Trial Magistrate deducted the five months the Appellant had spent on remand from the sentence or, at least, considered those five months. The Trial Magistrate's failure to apply the provision of Article 28 (3) of the Constitution in sentencing the appellant rendered his sentence illegal. The sentence is accordingly set aside.

Ground I, therefore, succeeds.

**Ground II.** TheLearned Trail Magistrate erred in law and fact when he imposed a manifestly harsh and excessive prison sentence of three (3) years with a compensation of 624,000,000/= (Six hundred twenty-four million shillings) within seven (7) years against the appellant.

The Appellant contended that the Trial Magistrate imposed a severe and stringent sentence on him. He submitted that if the Trial Magistrate had considered that,

1. he was a first offender; 2. he has a young family; 3. he is willing to reform and has reformed and 4. He is committed to refunding the stolen funds, which he would have discharged him.

An Appellate court is very slow to interfere with the sentence of the Trial Court because it does not have the benefit of observing the convict during the trial.

In Kakooza v Uganda [1994] UGSC 17, the Supreme Court observed that:

*An appellant court will only alter a sentence imposed by the trial court if it is evident it acted on a wrong principle or overlooked some material factor, or if the sentence is manifestly excessive in view of the circumstances of the case. Sentences imposed in previous cases of similar nature, while not being precedents, do afford material for considerations: see Ogala s/o Owoura v. R (1954) 21 E. A. C. A. 270.*

While in Bakubye & Anor v Uganda (Civil Appeal 56 of 2015) [2018] UGSC 5, the Supreme Court observed that:

*First and foremost, we wish to emphasize that sentencing is the discretion of a sentencing judge. That discretion can only be interfered with if the sentence is excessive and was premised on wrong principles of the law. [****See: Kyalimpa Edward vs. Uganda****,****SCCA No.10 of 1995****].*

The Supreme Court in the Rwabugande case had this to say on the powers of an Appellate court regarding interfering with sentences imposed by the lower court. The court said,

*In****Kyalimpa Edward vs. Uganda, Supreme Court Criminal Appeal No.10 of 1995,****the principles upon which an appellate court should interfere with a sentence were considered. The Supreme Court referred to****R vs. Haviland (1983) 5 Cr. App. R(s) 109****and held that:*

***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. It is the practice that as an appellate court, this court will not normally interfere with the discretion of the sentencing judge unless the sentence is illegal or unless court is satisfied that the sentence imposed by the trial judge was manifestly so excessive as to amount to an injustice: Ogalo s/o Owoura vs. R (1954) 21 E. A. C. A 126 and R vs. MOHAMEDALI JAMAL (1948) 15 E. A. C. A 126.****(Emphasis ours)*

*We are also guided by another decision of this court,****Kamya Johnson Wavamuno vs. Uganda Criminal Appeal No.16 of 2000****in which it was stated:*

***It is well settled that the Court of Appeal will not interfere with the exercise of discretion unless there has been a failure to exercise discretion, or failure to take into account a material consideration, or an error in principle was made. It is not sufficient that the members of the Court would have exercised their discretion differently.****(Emphasis Ours)*

In the case before me, the Trial Magistrate never considered the period the Appellant had spent on remand when sentencing him. I found this a fundamental error that necessitated my intervention and set aside the sentence. Therefore, the appellant will be sentenced afresh.

The Appellant has asked for a lenient sentence - a discharge because of being a first offender, having family responsibilities, being ill, and being willing to refund the stolen funds. These are worthy mitigation measures that would prima facie entitle the Appellant to a reformatory sentence. Sentencing is, however, a two-way process where the court must consider mitigating and aggravating factors in arriving at an appropriate sentence. The aggravating factors in this matter are:

1. Breach of trust by the Appellant. 2. The meticulous manner in which the Appellant planned and executed the offence. 3. The funds stolen were substantial, approximately U$170,000.

The mitigating factors are that the Appellant is:

1. a first offender; 2. has a young family and is the sole breadwinner; 3. willing to reform and has reformed; and 4. committed to refunding the stolen funds, he would have discharged him.

He also carefully and meticulously planned and executed the fraud over one year. He did it deliberately and, therefore, deserves to be punished. Considering the mitigating and aggravating factors, a custodial sentence is appropriate. The Third Schedule to the Constitution (Sentencing Guidelines for Courts of Judicature) (Practice) Directions, 2023 gives a sentence range of one to ten years’ imprisonment for theft and a starting point of five years’ imprisonment. I can however, depart from the range proposed in the Guidelines for good reasons. In this case, the mitigating factors raised by the Appellant and the fact that he is a foreigner are sufficient reasons for me to depart from the starting range in the Guidelines. I consider a sentence of forty months to be appropriate. However, considering that the Appellant had spent five months on remand, I will deduct this period from the sentence. The Appellant will, therefore, serve a net sentence of thirty-five months’ imprisonment. As the Appellant is not challenging the compensation order, the order will remain undisturbed.

In conclusion, Ground II of the Appeal is allowed.

**Decision.**

All the grounds of appeal are allowed with the following orders:

1. The sentence of the Trial Magistrate imposed on the Appellant is set aside. 2. The Appellant is re-sentenced to imprisonment of thirty-five months. 3. The order of compensation shall remain undisturbed.

It is so ordered.

Gadenya Paul Wolimbwa

**JUDGE**

14th February 2025

I request the Deputy Registrar to deliver this decision on 17th February 2025.

Gadenya Paul Wolimbwa

**JUDGE**

14th February 2025