Izimba v Uganda (Criminal Appeal 1 of 2025) [2025] UGHC 18 (15 January 2025)

### THE REPUBLIC OF UGANDA

## IN THE HIGH COURT OF UGANDA AT IGANGA

### CRIMINAL APPEAL NO. 001 OF 2025

## (ARISING FROM TO-001-2025 & TOR 001-2025)

# IZIMBA JAMES ::::::::::::::::::::::::::::::::::::

### **VERSUS**

UGANDA:::::::::::::::::::::::::::::::::::

## BEFORE: HON. MR. JUSTICE BATEMA N. D. A, JUDGE

### **IUDGMENT**

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This is an Appeal against the decision of H/W Ndiwalana Yunus, Magistrate Grade 1 sitting at Iganga. The Appellant pleaded guilty to 2 counts and was given an omnibus sentence as follows:

"The accused person was charged with two counts of Driving a motor vehicle without a permit and failing to give way to emergency vehicles officers; all under the Traffic and Road Safety Act as amended. On the day of plea taking, the accused pleaded guilty without wasting Court's time.

In allocutus, the State Attorney has informed Court that he has no previous record against the accused. While the accused in mitigation has prayed for mercy. Offences of people driving vehicles without permits are on the raise and this has resulted into many Ugandans losing lives because of immature Drivers without documents to be on the road.

Similarly, a presidential convoy by law has a right of way, I mean he is the First Citizen. But because of moral decadency, Ugandans continue to drive in the middle of the road even when they see the fountain of honour.

A message must be sent out there, that is why it's my considered opinion that the 30 convict is sentenced to One (1) Year and Six (6) months on both counts to run concurrently to enable him reform and become a better man".


$\overline{A}$


Both the learned state Attorney and counsel for the Appellant agreed that the sentence of one year and six months on count 1 is illegal. The maximum sentence prescribed by the law under Section 54 of the Traffic and Road Safety Act Cap **347** does not exceed one year.

Without wasting time, I quash the sentence passed by the learned trial Magistrate on count 1. I substitute it with a sentence of 10 days' imprisonment.

As regards the same sentence of a year and six months for failure to give way to 40 authorized emergency vehicle on count 2, the law under Section 112 (6) of the **Traffic and Road Safety Act provides:**

"Any person who fails to comply with this section commits an offence and is liable, on conviction, to a fine not exceeding two hundred currency points or to imprisonment for a term not exceeding two years, or both".

The first option is therefore a fine and not imprisonment. Imprisonment is a second option. Such sentence in our judicial practice comes into play in default. Where one fails to pay the fine he/ she serves the sentence of imprisonment. The $3<sup>rd</sup>$ option is a sentence of both a fine and imprisonment. This is usually given in the rare of the rarest traffic cases.

The circumstances of the case may be that a fine goes to the consolidated fund but does not serve the ends of justice to the victims of the offence or is not deterrent enough to send a clear message to the general public. Sometimes the court orders the fine to be converted into compensation to be paid to the injured victims of the offence.

In the instant case it was submitted by Counsel for the Appellant that the sentence was harsh and out of bias while the State Attorney argued that a year and a half custodial sentence fell squarely within the law since the maximum sentence prescribed is two years. It would be wrong to assume that where a sentence

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prescribes several options, the court is free to choose any of them randomly. The Judicial officer is expected to exercise his or her discretion judiciously. A custodial sentence should be given as the last option as guided above. I would even encourage judicial officers to consider the option of giving community service orders before $\sim 10^{\circ}$ resorting to imprisonment in traffic offences.

There were arguments as to whether the sentencing Magistrate exercised mercy/ leniency in light of the mitigating factors. Consideration of mitigating and aggravating factors is not limited to merely recording them. Justice demands that the court records down whether it is going to be lenient or not basing on those grounds and if it rejects the mitigating factors, it must have proof that they carry no $\mathbb{W}$ water.

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In the instant case, the sentencing Magistrate did not consider the mitigating factors raised, instead he created his own aggravating factors such as Offences of people driving vehicles without permits being on the raise without proven statistics. He treated a 26-year-old Appellant as an immature driver. There is no such evidence that this was an immature driver or that such cases were on the increase.

For that reason, I would think that the convict deserved lenience as a first offender, remorseful offender and one who had not wasted court's time. I hereby quash the sentence of one year and six months. I substitute it with a sentence of a caution.

Before I take leave of this matter, let me comment on the procedure of recording the sentence. where there is more than one count, court must separate and specify the sentence for each count. An omnibus sentence giving one sentence for all counts is irregular. The order as to whether the sentences are to run concurrently or consecutively is a stand-alone order after the sentences have been meted out count by count. Similarly, an order for compensation stands alone after sentencing. Combining both in one order seems to suggest that an order for compensation can substitute for a fine or terms of imprisonment were as not.

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$\mathbb{R}$

In the final result, the appeal succeeds on each count. The appeal is allowed.

BATEMA N. D. A **IUDGE**

15/01/2025

Release order

The Appellant has already served his sentence. He is hereby set free.

$\frac{1}{2}$ BATEMA N. D. **JUDGE** 15/01/2025

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