Habib Salim v Uganda (Criminal Appeal 407 of 2016) [2023] UGCA 139 (28 April 2023)

Full Case Text

# .5 THE REPUBLIC OF UGANDA

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

lCoram: llarishaki, Mugcnyi & (iashirabakc, 'IJAI

#### CRIMINAL APPEAL NO. 407 OF 20I6

(Arising from I Iigh Court Crintinal Case No.037 of 20I 5 )

10 HABIB SALIM........ APPELLANT

#### AND

UGANI)A RESPONI)!rN-t

(Appeal ./i'ont lhe judgmenl of the Iligh Court of Ugancla llolden ut Arua, before John Eudes Keitirimo. J delivered on the I'November 2016)

#### JUDGMENT OF THE COURT

#### Introduction

On I \*t Novcmb cr 2014 at (lobiri Nyaria ccll in Maracha districl, at around 6:3Oam thc dcccascd who was thcn 75 ycars was hcard raising alarm ncar hcr homc. Whcn thc alarm was rcspondcd to by onc ol'thc ncighbours' thc accuscd was lound moving away lrom thc sccnc whcrc thc dcccascd was found lying unconscious.

'l'he rclalivcs ol'thc dcccascd wcrc immcdiatcly informcd including hcr niccc onc Onziru Night rvho rcspondcd and on arrival rushcd thc dcccascd to hospital. Whcn shc arrivcd at thc hospital she was givcn a drip and shc gaincd consciousncss and cvcn rcqucsted to bc takcn lbr a long call. 'lhis was donc by Onziru Night. 'l'hat at that momcnt Ms. Night Onziru askcd thc dcccascd what happcncd and shc told hcr that thc accuscd boxcd her in thc chcst and whcn shc lcll down thc accuscd continucd kicking hcr in thc stomach. 'l'hc dcccascd said shc madc an alarm thrcc timcs.

30 'l'hat rvhilc narrating, thc dcccascd voicc startcd narrowing and shc startcd vomiting blood and cvcntually collapscd and dicd. Whcn thc post-mortcm was donc it was lbund out that thc causc ol dcath was rcspiration lailurc combincd

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with closed head injury and abdominal visceral organ contusion all found to be $\cdot$ 5 due to some physical violence.

The Appellant Habib Salim was charged with the offence of murder of a one Driciru Hellen Contrary to sections 188 and 189 of the Penal Code Act. Upon trial, he was convicted of the offence of murder and sentenced to 35 years imprisonment. Being dissatisfied with the conviction and sentence, he appealed on grounds that:

- 1. The learned trial Judge erred in law and fact when he held that the Appellant was responsible for the death of the deceased, Driciru Hellen in the absence of corroborative evidence to that effect. - 2. The learned trial Judge erred in law and fact when he sentenced, the Appellant to a long custodial sentence without taking into account the pretrial remand period of two years that he had spent in prison. - 3. The learned trial Judge erred in law and fact when he sentenced the Appellant to 35 years in prison which sentence is harsh and excessive in the circumstances

#### **Representation**

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Ms. Daisy Patience Bandaru was represented the Appellant. Ms. Nakafeero Fatinah and Mr. Bayo William represented the Respondent.

#### Duty of this Court.

- 25 First of all, our duty as a first appellate court is to re-evaluate evidence. Following the cases i.e. Pandya vs R (1957) EA 336; Kifamunte Henry vs Uganda Criminal Appeal No.10.1997, Bogere Moses and Another v Uganda Criminal Appeal No.1/1997, the Supreme Court stated the duty of a first appellate court in Father Narnensio Begumisa and 3 - 30 Others vs Eric Tiberaga SCCA 17/20 (22.6.04 at Mengo from CACA 47/20000 [2004] KALR 236.

"The court observed that the legal obligation on a first appellate court to p

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appraise evidence is founded in Common Law, rather than the Rules of Procedure. The court went ahead and stated the legal position as follows:-"It is a well-settled principle that on a first appeal, the parties are entitled to obtain from the appeal court its own decision on issues of fact as well as of law. Although in a case of conflicting evidence the appeal court has to make due allowance for the fact that it has neither seen nor heard the witnesses, it must weigh the conflicting evidence and draw its own inference and conclusions."

### The Court with approval, quoted the Court of Appeal of England which stated the Common Law position in Coghlan v Cumberland (1898) 15 1ch.704 as follows:-

"Even where, as in this case, the appeal turns on a question of fact, the Court of Appeal has to bear in mind that its duty is to rehear the case, and the court must reconsider the materials before the judge with such other; materials as it may have decided to admit. The court must then make up its own mind, not disregarding the judgment appealed from, but carefully weighing and considering it; and not shrinking from overruling it if on full consideration the court comes to the conclusion that the judgment is wrong..... When the question arises which witness is to be believed rather than another and that question turns on manner and demeanor, the Court of Appeal always is, and must be, guided by the impression made on the judge who saw the witnesses. But there may obviously be other circumstances, quite apart from manner and demeanor, which may show whether a statement is credible or not; and these circumstances may warrant the court in differing from the judge, even on a question of fact turning on the credibility of witnesses whom the court has not seen." In Pandya vs R (1957) EA 336, the Court of Appeal for Eastern Africa quoted the passage with approval, observing that the principles declared therein are basic and applicable to all first appeals within its jurisdiction."

We shall, therefore, in the course of this judgement re-appraise the evidence on record bearing in mind that we did not observe the demeanor of the witnesses.

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#### 5 Ground I

#### Submission by counscl for thc Appcllant

Counscl lirr thc Appcllant submittcd that thcrc was no dircct cvidcncc idcntilying thc Appcllant as thc dcccased's assailant. PW2, said that it was thc dcccascd rvho said thc accuscd had boxcd hcr yct in thc samc cvidcncc shc said shc lound thc dcccascd lying unconscious. 'l'his amountcd to a dying dcclaration as dcllncd undcr Scction 30 of thc lrvidcncc Act which is admissiblc. 'lhis should bc takcn with caution as thc dcccascd was not thcrc to be cross cxamincd, and although corroboration ol- such statcmcnts is not ncccssary as a mattcr ol'law, judicial practicc rcquircs that corroboration must always bc sought. Counscl citcd

#### Tindigwihura Mbahc V Uganda; SC Criminal Appcal No. 9 of 1987. 15

Additionally, PW2 tcstillcd that whcn shc had an alarm, shc wcnt out and lbund thc dcccascd lying unconscious and shc saw thc accuscd/ Appcllant in about 30 mclrcs liom thc sccnc walking away. Ilowcvcr, thcrc was nothing to show that thc dcccascd was coming liom thc sccnc ol' crime or that he cvcn noticcd thc dcccascd.'l.hc trial court trcatcd this as circumslantial cvidcncc and rclicd on this to basc its conviction. Court nccdcd 1<l trcat such cvidcncc with caution as was in thc casc ol'Byaruhanga Fodori v Uganda, SC criminal Appeal No. l8 of2002; [200s1 l ULSR 12.

Counscl lurthcr submittcd that thc court must bc surc that thcrc arc no othcr cocxisting circumstanccs, which wcakcn or dcstroy thc infbrcncc ol'guilt. Counscl rclicd on Tindigwihura Mbahe Uganda SC crim appeal No. 9 of 1987, whcrc court statcd that circumstantial cvidcncc must bc trcatcd with caulion and narrowly cxamincd, bccausc cvidcncc of this kind can casily bc l-abricatcd. In thc instant casc, thc Appcllant was not lbund at thc sccnc. it is possiblc that thc Appcllant was not awarc of thc I'act that dcccascd had bccn assaultcd and that hc 30

did not scc thc deccascd lying at thc sccnc as hc was on his way to Nyadri. 'l'his may also point to thc probablc Iact that thc dcccascd's assailant upon commission

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5 ol'the ol'fcncc cscapcd unsccn. All this show that thc circumstantial cvidcncc of PW2 was capablc olothcr cxplanation.

Irurthcrmorc, PW3, who was thc invcstigating olllccr did not statc thc circumstanccs undcr which thc Appcllant was arrcstcd. I lis cvidcncc is that thc Appcllant was arrcstcd by Jua kali (iroup ol'Maracha 'l'rading Ccntrc, nonc of whom was callcd as a witncss.

Counsel thcn submittcd that the lcamcd trialiudgc crrcd in law and l'act whcn he hcld that thc Appcllant was rcsponsiblc lor thc dcath ol'thc dcccascd. In thc abscncc of corroborativc cvidencc to that cll'cct and thc cvidcncc that hc uscd as corroboralion was not contcnt cnough 1o pin thc Appcllant as the pcrson rcsponsiblc lor thc dcath ol'thc dcccascd.

#### Submissions by counscl for thc Rcspondent.

Counscl submittcd that corroboratcd cvidcncc is cvidcncc that strcngthcns or confirms alrcady cxisting cvidcncc in cour1. It is uscd to support lcslimony of'a witncss as was in thc casc of'Ntambola V Uganda, criminal appcal No.34 of

- 2015. In this casc. it was statcd that cvidcncc o1'a singlc idcntilying witncss was not corroboratcd but was sulficicnt to convict thc Appcllant. What is rcquircd of court is to satisly itsclf that thc witncss was truthlul and rcliablc. In thc instant casc thc prosccution casc was prcmiscd on a dying dcclaration and cvidcncc ola singlc idcntilying witncss. It was thc lcstimony ol'PWI who had bccn inlbrmcd 20 - by thc dcccascd that thc accuscd continuously boxcd hcr in thc rcgion ol-thc hcart and shc lcll down and cvcn allcr shc had alrcady l'allcn, thc accuscd did not stop, and that I'Wl should takc carc ol'hcr childrcn as shc might not survivc, shc thcn shortly passcd on. 'l'his slatcmcnt amountcd to a dying dcclaralion undcr Section 30 ofthc Evidcncc Act Cap 6. 25 - In thc casc o{'Kazarwa Hcnry V Uganda, Criminal Appeal No. l7 of 2015. thc Suprcmc court citcd and quolcd thc casc ol'Tindigwihura Mbahc V Uganda 30

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(Supra) whcrc it was hcld that cvidcncc ol'a dying dcclaration must bc rcccivcd with caution bccausc thc tcst ol'thc cross cxamination may bc wholly wanting sincc it is madc in abscncc of thc accuscd. 5

In Oyee Gcorge V Uganda Court of Appcal Case No. 159, 2012 court cmphasizcd thc nccd lor corroboration ofa dying dcclaration bclbrc it can be uscd against thc accuscd, in thc inslant PWI providcd thc cvidcncc of a dying dcclaration which was corroboratcd by cvidcncc ol'PW2 whosc tcstimony was that shc kncw both thc accuscd and dcccascd and that on thc Iatelul night, shc found thc dcccascd lying unconscious unablc to talk and also saw thc appcllant walking away liom thc sccnc ol'crimc.'l'hc cvidcncc ol'PW2 was corroborativc olthc dying dcclaration and thc idcntification of thc Appcllant whosc conduct ol' walking away Iiom thc crimc sccnc was inconsistcnt with his innoccncc. 10 15

Counscl also submittcd that thc same PW2 appcarcd to bc thc only singlc idcntilying witncss in court. Counscl lurthcr statcd that thc law on singlc idcntilying witncss was laid out in thc casc ol'Nzabaikukize Jamada vs Uganda

- SCCA no. 0l/2015 and Abdullah Bin Wendo and Another Vs R (1953)2 EACA 583. Court considcrcd thc cvidcncc on rccord as a wholc to satisly itscll' on conditions undcr which thc idcntification was madc to includc light during thc incidcnt, lamiliarity of'thc appcllant with thc wilncss, distancc bctwccn witncss and appcllant. lcngth ol'1imc among othcrs. 'l'hc tcstimony ol'PW2 was thal shc 20 - kncw thc Appcllant vcry wcll. I Iis homc is ncar thc sccnc olcrimc, it was 7:30am whcn shc saw him about 30 metcrs walking away liom thc crimc sccnc and evcn past his homc, hcncc thc conditions werc lavourablc lbr idcntillcation and PW2 madc thc corrcct idcntillcation ol-thc Appcllant. 25

Counscl concludcd by stating that thc cvidcncc connccts thc Appcllant to thc crimc and indccd hc was rcsponsiblc lor thc dcath ol'thc dcccascd hcncc thc trial Judgc corrcctly convicting him as chargcd and thc ground ol'appcal should fail. 30

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## s Considcration of Court.

'l his was a casc lbr murdcr and thc prosccution has thc burdcn to provc thc lirllowing ingrcdicnts ol'thc oll'cncc bcyond rcasonablc doubt

I. Dcath of a person.

- 2. 'fhc dcath was unlawfully causcd. - 3. 'fhc death was causcd with malice afbrethought. - 4. 'I'he accuscd persons participatcd in or caused thc death ofthe deceased

In this particular casc, it is not in disputc that thcrc was a dcath ol'a pcrson. 'l'hc dcath was unlawlully causcd. I)cath was causcd with malicc albrcthought. What is in disputc in this casc is thc participation ol- thc Appcllant. 'l o support thcir casc, thc prosccution brought cvidcncc of thrcc wilncsscs.

With rcgard to thc ingrcdicnt o I' participation, l)W I statcd that shc was callcd at 7:30am by a ncighbour that thc dcccascd had bccn boxcd in thc stomach. 'l'hat shc rushcd and thcy took thc dcccascd 1o hospital at Nyadri. Ily thcn thc dcccascd was unablc to talk. 'l'hat thcy took thc dcccascd to Ovu.io hospital. 'l'hat thc nurscs

- thcy lound a1 thc hospilal tricd to put a drip on hcr. Shc averrcd that as thcy did this fcaccs startcd coming out ol'hcr body so thc dcccascd rcqucslcd to bc takcn to thc wash room.'l'hat thc dcccascd told hcr thal thc accuscd had boxcd hcr in thc region ol'hcr hcart and shc lbll donc. 'l hc accuscd boxcd and kickcd hcr. 'l hc dcccascd thcn vomilcd blood and thcn passcd on shortly. 20 - I)W2 on thc othcr hand tcslillcd that. on l" Novcmbcr 2014 at around 7:30 a.m. shc was at homc, I hcard an alarm, thcn I ran out and lbund thc dcccascd lying down. Shc tricd to talk to her bu1 shc was unablc to talk as shc was unconscious. many pcoplc gathcrcd. 'lhe LC's arrivcd and said shc should bc takcn to hospital. shc avcrrcd that shc ncvcr lbund thc accuscd at thc sccnc but hc was in somc 25 - distancc ol'abou1 30 mclrcs. thc accuscd was walking away liom thc sccnc ol'thc 30 cnmc.

This is a case of circumstantial evidence and a dying declaration. A dying $\sqrt{5}$ declaration was defined in The Black's Law Dictionary, 6th Edition defines as;

> 'a statement made by a person who believes he is about to die in reference to the manner in which he received the injuries of which he is dying, or other immediate cause of his death, and in reference to the person who inflicted such injuries or the connection with such injuries of a person who is charged or suspected of having caused them."

Under Section 30 of The Evidence Act, a dying declaration is a statement made by a person who believes he is about to die in reference to the manner in which he or she sustained the injuries of which he or she is dying, or other immediate cause of his or her death, and in reference to the person who inflicted such injuries 15 or the connection with such injuries of a person who is charged or suspected of having caused them.

Legally, a dying declarations is always received with caution, because the test of cross examination may be wanting and particulars of violence may have occurred in circumstances of confusion and surprise. Although corroboration of such statements is not necessary as a matter of law, judicial practice requires that corroboration must always be sought for (see R. v. Eligu S/o Odel and Epangu

S/o Ewunya (1943) 10 EACA 90; Pius Jasunga v. R. (1954) 21 EACA 331).

We find the corroboration of the dying declaration by PW 1 who stated that he saw the Appellant walk away from the scene of the crime. PW1 responded to the 25 alarm of the deceased. The conduct of the Appellant walking away from an alarm of an elderly woman of 75 years is not one of an innocent person. She was not only elderly but the deceased was also a relative.

The dying declaration was also corroborated by Exh P3 which shows that the 30 deceased had fractured ribs 8 to 9 left side chest crepitations with bleeding into pleural space. The cause of death was found to be Respiration failure due to Pheumo Haemothorax combined with 2 closed head injury and 3 abdominal

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$\overline{ }$ $\cdot$ 5 visceral organ contusion all due to some physical violence. This aligns with the dying declaration made to PW2 by the deceased that she was boxed and kicked by the Appellant.

Circumstantially, PW2 testified that the Appellant was walking away from the scene of the crime after hearing an alarm, this is a conduct of a person who is not innocent.

Considering that this was early in the morning at around 7:30am, the identity of the Appellant was not mistaken. We therefore find that there is no other logical conclusion other than the fact the Appellant was the one responsible for the death of the deceased.

This ground fails. 15

## Ground 2

### **Submissions by counsel for the Appellant**

Counsel submitted on **Article 23(8)** of the Constitution 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 same position was discussed in the case of **Rwabugande Moses V Uganda**; SC Crim Appeal no. 25 of 2014. It was noted that Article 23(8) makes it mandatory and not discretional that a sentencing judicial officer accounts for the 25 remand period. In the instant case, the evidence on record contained in **page 34** of the record of appeal shows that the Appellant at the time of conviction had been on pretrial remand for a period of 2 years, however there is no evidence to show that the trial judge considered the pretrial remand period save for stating so during sentencing. 30

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- 5 As rightly statcd by thc Suprcmc Court, in Rwabugande Moses' case (Supra), just stating that court has takcn into account thc time spcnt on rcmand is not cnough bccausc considcration of thc rcmand pcriod should neccssarily mcan rcducing or subtracting that pcriod from thc final scnlcncc which was not donc in this casc, hcncc making thc scntcncc imposcd on thc appcllant illcgal as it contravcncs thc provisions in Articlc 23(8) of thc constitution. Counscl praycd that this ground succccds. 10 - Submissions by counscl for thc Rcspondcnt.

Counscl submittcd that thc trial judgc did not crror in law and lact whcn scntcncing thc Appcllanl that thc 2 ycars' pre-trial rcmand was considcrcd.

- Counscl rcl'crrcd to thc casc ol' Bulila Christiano and anothcr V Uganda Criminal Appcal NO. 6l of 2015 in which thc casc olNashimolo Paul Kibolo V Uganda Criminal Appeal No. 46 of 2017, was discusscd 1o thc cll'cct that thc provision of Article 23 (8) docs not dictatc on court to makc a rcduction on thc scntcncc alrcady imposcd, it lurrhcr hcld that at arriving at an appropriatc scntcncc thc trial court must calculalc thc pcriod a convict has spcnt on rcmand and subtract it liom thc proposcd scntcncc. l'his dccision was rcachcd in a judgcmcnt dclivcrcd on 3'd March 2017.'l'hat in accordancc rvith thc principlc ol' prcccdcnt in court, lowcr coufls musl lbllow thc position ol'thc law liom thal datc hcncclbr1h. 15 20 - Subscqucntly in thc casc of'Scbunya Robert and anothcr V Uganda SCCA no. 58 of20l6, it was held that the Rwabugande decision (Supra) docs not havc any rctrospcctivc cl'fccl on thc scntcnccs which wcrc passcd bclbrc it. Counscl submittcd that sincc counscl lbr thc Appcllant rclicd on a.judgmcnl dclivcrcd on I't Novcmbcr 2016 which timc the prcccdcnt rvas not in placc hcncc having no 25

binding lbrcc on thc dccision takcn in thc instant casc.

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5 Counscl concludcd by submitting that thc articlc mcntioncd was not contravcncd hcncc this ground of appcal should I'ait.

Wc agrcc with both counscl lbr thc Appcllant and thc Itcspondcnt that thc position of'thc law is that thc scntcncing court has to put it considcration the time spcnt on rcmand by thc accuscd whilc scntcncing according to Article 23(8) of thc Constitution.

Wc howcvcr disagrcc with thc submissions madc by counsel lbr thc Appcllant that thc trial -judgc in this casc was bound by thc position ol' thc law in Rwabugandc Moses' case (Supra), of arithmctically dcducting thc ycars spcnt on rcmand by thc accuscd. '['hc position of thc law was rcclillcd in thc casc rclicd on by counscl for thc I{cspondcnl in Nashimolo Paul Kibolo V Uganda Criminal Appcal No. 46 of 2017, whcrc it was hcld that thc arithmctic calculation ol'dcducting ycars spcnt on rcmand docs not act rctrospcctivcly but it only applics to decisions that wcrc delivered aftcr 3'd March 2017, whcn thc Rwabugande Moscs(Supra) dccision was dclivcrcd. 'l'his instant casc was 15

dccided on thc I Novcmbcr 2016 and bclbrc thc Rwabugande casc (Supra) I'his ground lails 20

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## Submissions by Counscl for thc Appellant

Counscls' contcntion was prcmiscd on the lact that considcring thc scnlcncc ol' 35 ycars as comparcd to similar dccidcd murdcr cascs cither by this honourablc court or thc Suprcmc Court, thcrc is no unilbrmity, and that thc said scnlcnce is harsh and cxccssivc in thc circumstanccs. 25

Additionally. counscl submittcd thal thcrc is nccd lur this court as an appcllatc court to maintain consistcncy or unilormity in scntcncing as was in thc casc of

Mbunya Godfrey V Uganda; SC Crim Appeal No. 4 of 201l. Furthcrmorc, in thc caso ol'Rwabugandc Moscs v Uganda lSupru)', thc Appcllant 11lPag0 30 ho was

- 5 convictcd of thc oll'cncc of murdcr was scntcnccd by thc trial court to imprisonmcnt lbr a pcriod ol'35 ycars and on appcal against scntcncc to thc Suprcmc Court, in light of fic timc spcnt on rcmand and othcr mitigating factors, thc scntcncc was rcduccd lrom 35 ycars to a tcrm ol'imprisonmcnt of 2l ycars. Similarly, in thc casc ol'Mbunya Godfrey v Uganda; SC Crim. Appeal No.4 - of 201l, wherc thc Appcllant was a llrst-timc oll'cndcr, thc Suprcmc Court sct asidc thc scntcncc oldcath and substitutcd it with a tcrm of imprisonmcnt ol25 ycars on thc appcllant who had murdcrcd his wifc. 10

Counscl also submittcd on thc casc ol'Akbar Husscin Godi V Uganda: SC Criminal Appeal No.3 of 2013, whcrc thc Appcllant had bccn scntcnccd by thc

- trial court to 25 ycars' imprisonmcnt lor thc murdcr ol'a spousc and was uphcld. Similarly, in Korobe Joseph V Uganda; CA Crim Appeal No. 243 of 2013, whcrc lhc Appcllant had bccn scntcnccd by thc lrial court to 25 ycars imprisonmcnt lbr murdcr. thc court ol'appcal rcduccd lhc scntcncc to l4 ycars, bccausc hc was ol-advanccd agc and had shown rcmorsc. 15 - Counscl concludcd basing on thc abovc authoritics that thc senlcncc in thc instant casc is harsh and manil'cstly cxccssivc in thc circumstances and praycd that court intcrlbrcs with thc scntcncc 1o bring it to uni(ormity wilh scntcnccs madc in similar ollbnccs as shown. IIe additionally praycd that court allows thc appellants appcal against scntcncc and substitutcs 35 ycars imprisonmcnt with a pcriod ol' 20 - 20 ycars liom thc datc ol'conviction. 25

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## Submissions by Counscl for thc Rcspondent.

Counscl citcd Olara John Petcr V Uganda Court of Appeal casc no. 30 of 2010, court outlincd thc law govcming intcrl'crcncc with thc scntcncc and hcld that thc crileria to bc lbllowcd is sct down in thc casc of Kiwalabye Bernard V

Uganda Supremc Court CA no. 143 of 2001. whcrc court stalcd that fic appcllatc courl is not to intcrl'crc rvith thc scntcncc imposcd by thc trial court which had cxcrciscd its discrction on scntcncc unlcss thc scntcncc imp cd is 30

manifestly excessive or so low as to amount to a miscarriage of justice or where $\cdot$ 5 a trial court ignores to consider an important matter or circumstances which ought to be considered while the sentence imposed is wrong in principle.

Additionally, the Appellant had been indicted for the offence of murder contrary to Sections 188 and 189 of the Penal Code Act, which offence attracts a maximum penalty of death upon a conviction. Counsel submitted that the trial Judge $10$ considered both aggravating and mitigating factors arriving at a lenient sentence of 35 years. Such a sentence was neither illegal, harsh nor excessive and the trial judge rightly directed himself on the law and applied it to the facts on record. Counsel then contended that this court has no basis to interfere with the sentence 15 and prayed that the appeal be dismissed since it lacks merit and the Appellant conviction and sentence be upheld.

# **Consideration of Court.**

It is now an established position of the law that a sentencing court is bound by the principle of consistency. This principle is to the effect that the sentences passed by the trial Court must as much as circumstances may permit, be similar 20 to those passed in previously decided cases having a resemblance of facts. See: Aharikundira Yustina vs. Uganda, Supreme Court Criminal Appeal No. 27 of 2015.

Considering whether the sentence is harsh or excessive the court is guided by the principle of consistency. To ensure this consistency the guidelines provide for 25 ranges to guide the sentencing judge. Guideline 19(1) of the Constitution (**Sentencing Guidelines**) provides for sentencing range for capital offences. It provides that:

"The court shall be guided by the sentencing range specified in Part I of the Third Schedule in determining the appropriate custodial sentence in a capital offence."

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- 5 Whcn imposing a custodial scntcncc on a pcrson convictcd ol thc olTcncc of murdcr, thc third schedulc ol -fhc Constitution (Scntencing Guidelines for Courts of Judicaturc) (Practicc) Directions, 2013, itcm 3 of part I thc scntcncing rangc lbr murdcr starts lrom 35 ycars to dcath scntcncc. 't'his can bc rcduccd or incrcascd dcpcnding on thc mitigating and aggravating lacl\_ors. - Additionally, thc scnlcncing court is guidcd by thc principlc of consistcncy and unilbrmity whcn scntcncing. Guideline 6(c) of the Scntencing Guidelines providcs that; 10

"Iivcry court shall when sentcncing an oll'cndcr takc into account thc nccd lor consistency with appropriatc scntcncing lcvels and othcr nrcans ol- dcaling with offcndcrs in rcspcct ol'similar ol'l'cnccs committcd in similar circumstanccs"

'l'hc oll'cncc in qucstion in this mattcr is murdcr contrary to Section 188 of the Pcnal Code Act. lJndcr thc Pcnal Codc thc punishmcnt lirr murdcr undcr Section 189 is dcath. Sincc thc casc ofSuzan Kigula and other vs. A. G (Supra) thc dcath

scntcncc wils ovcrrulcd.'l'his mcans this scntcncc is not hardlv considcrcd. 20

'l'hc holding ol'thc trial court as partially laid abovc dcmonstratcs that thc trial court put inLo considcralion thc mitigating lactors and aggravating lactors. 'l'hc mitigating lactors wcrc that thc accuscd was still young and capablc of translbrming. I Iaving considcrcd thc mitigating Iactors, thc trial .iudgc could not bc l'aultcd on that principlc. In Aharikundira vs. Uganda l20l8l SC Criminal Appeal No.27 of20l5, court hcld that;

> "ln consideration of thc aggravating lactors and mitigating factors of thc casc, and in the intercst ofconsistency wc arc ofthc vicw that thc dcath scntcncing this casc should not stand. 'l'hc dcath scntcncc is hcrcby sct asidc and substitutcd with a scntcncc ol'30 ycars to run from thc timc ofconviction in the lligh Court"

In thc abovc casc. thc Appcllant brutally murdcrcd hcr husband and cu1 ofl his body parts in cold blood.

14 | I' .r 1{,

5 In Ndyomugenyi vs. Uganda, Supreme Court Criminal Appcal No.57 of 2016, thc Supremc Court conlirmcd a scntcncc of 32 ycars' imprisonmcnt lor a murdcr as passcd by thc rc-scntcncing iudgc and conlirmcd by thc Court of Appcal.

In Mpagi Godfrcy vs. Uganda Suprcmc Court Criminal Appeal No 63 of 2015, thc Suprcmc Court conlirmcd a scntcncc ol'34 ycars' imprisonmcnt lbr murdcr as handcd down hy thc scntcncing .judgc and conllrmcd by thc Court of Appcal. 10

In thc spirit of consistcncy. wc llnd that thc scntcncc ol'35 ycars was not harsh considcring thc lact thal this was an cldcrly woman with lbw ycars lcli lbr hcr to

rcst in pcacc. 'l'hc Actions ol- thc Appcllant wcrc brutal and thc actions dcscrvc thc scntcncc handcd down. 15

Wc llnd no mcrit in this Appcal

- l. lhc appcal is dismisscd. - 2. Conviclion of thc lowcr court uphcld. - 3. Scntcncc olthc lorvcr court is uphcld. 20

### Wc so ordcr

| Dated at Arua this *-(.t ,u, o, | | 2!.3 | |---------------------------------|--|------| | | | | | | | | | | | |

CTI E,I}ORION I}ARISHAKI

JUSTICE, OF APPEAL

15 lPage

$\mathcal{M}$ genyi 1 **MONICA MUGENYI JUSTICE OF APPEAL ...........** ī **CHRISTOPHER GASHIRABAKE**

**JUSTICE OF APPEAL**

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