Kabaaho v Uganda (Criminal Appeal 503 of 2015) [2025] UGCA 143 (20 May 2025)

# THE REPUBLIC OF UGANDA

# IN THE COURT OF APPEAL OF UGANDA HOLDEN AT MBARARA

# CRIMINAL APPEAL NO.0503 OF 2015

**VERSUS**

#### **KABAAHO JULIUS**

APPELLANT

**RESPONDENT**

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$\mathsf{S}$

### **UGANDA**

(Appeal from the judgment of the High Court at Mbarara (Gaswaga, J) delivered on 20<sup>th</sup> May 2015 in Criminal Session Case No.0230 of 2012)

$20$

$25$

(Coram: Kazibwe Kawumi, Nakachwa, Kakooza Sabiiti, JJA)

# JUDGMENT OF THE COURT

The appellant was tried and convicted of Murder contrary to sections 188 and 189 of the Penal Code Act. He was sentenced to 31 years' and 6 months' imprisonment on 20<sup>th</sup> May 2015.

### **Background**

The facts upon which the appellant was convicted are that the appellant and the deceased, Asiimwe Julius, were village mates at Rubenje cell in Buhweju District. The two were casual labourers in that area. On 1st November 2011 the accused and the deceased agreed to work together to complete a brick making assignment for one of the residents. They were seen together drinking waragi in a local bar and left at 8.00pm.

The accused was carrying a panga and two hoes bought for use in the task 30 they had set out to complete the following day. As they walked home, the accused cut the deceased with a panga on the heel of the right leg and he fell down. The appellant left the deceased at the scene.

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- A villagemate named Mugisha who had followed them found the $\mathsf{S}$ deceased in agony. The deceased narrated to Mugisha what the appellant had done and how he had pleaded with him to tie the bleeding leg with his jacket but he refused and abandoned him at the scene. - Mugisha ran back to the bar and informed the owner who together with $10$ others rushed to the scene and the deceased narrated what had happened to them. The appellant emerged from the bush and joined them in taking the deceased to the local trading centre from where he was arrested by the village leaders. The deceased was rushed to Itojo hospital from where was pronounced dead on arrival. $15$

The appellant raised an alibi to the effect that he was at his home at the time the deceased was allegedly cut. The trial court disbelieved it and found him guilty upon which he was convicted and sentenced to 31 years and 6 months' imprisonment,

Dissatisfied with the sentence imposed by the trial court, the Appellant lodged an Appeal on the ground that; -

The learned trial Judge erred in law and fact when he sentenced the Appellant to a harsh and excessive sentence thereby occasioning a $\overline{25}$ *miscarriage of justice to the Appellant.*

The Appellant proposed that the sentence be set aside and substituted with one of 15 years.

#### Representation $30$

Mr. Tumwebaze Emmanuel represented the appellant on state brief while Ms. Akaasa Amina, a State Attorney in the Office of the Director Public Prosecutions appeared for the Respondent.

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$\mathcal{L}$

The court validated the notice of appeal filed out of time and granted the $\mathsf{S}$ Appellant leave to only appeal against the sentence. Counsel filed submissions, which were adopted with the leave of court as their final arguments in the determination of the appeal.

#### **Submissions by Counsel for the Appellant** $10$

Counsel conceded that an appellate court shall not interfere with the sentence imposed by a trial court save where it was manifestly excessive or so low as to amount to a miscarriage of justice or where the trial court ignored important matters or circumstances which ought to have been considered in determining an appropriate sentence or where the sentence was based on a wrong principle.

It was submitted that the sentence imposed by the trial court was however harsh and excessive compared to others where the convicts had been found or pleaded guilty to murder. The Court was referred to 20 Wabwire Iddi V. Uganda [2020] UGCA 2109 in which this court reduced the sentence from Life imprisonment to 18 years' imprisonment. The appellant in the case had pleaded guilty to the charge of murder.

Counsel further cited John Kasimbazi & Others V Uganda, CACA No.167 $25$ of 2013 in which this court reduced the sentence from Life imprisonment to 12 years imprisonment in a case of murder. It was submitted that the imposed sentence of 31 years and 6 months was thus harsh, excessive and imposed in disregard of the principle of consistency in sentencing espoused in numerous decision of this Court. 30

# **Submissions by Counsel for the Respondent**

It was submitted that the offence of murder contrary to sections 188 and 189 of the Penal Code Act (now 171 & 172) attracts a maximum sentence of death with a starting point of 35 years as per the **Constitution** (Sentencing Guidelines for Courts of Judicature) (Practice) Directions, Legal Notice No.8 /2013.

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Counsel pointed out that an appellate court is not to interfere with a $\mathsf{S}$ sentence imposed by a trial court which has exercised its discretion unless the exercise of the discretion is such that it results in the sentence imposed being manifestly harsh or so low as to amount to a miscarriage of justice or where a trial court ignores to consider an important matter which ought to be considered while passing the sentence. $10$

It was submitted that the trial court considered both the aggravating and mitigating factors advanced by both parties before arriving at an appropriate sentence of 32 years and 6 months' imprisonment. The Court was referred to Ssemaganda Sperito & Another v Uganda, CACA No.456 of 2010 in which this Court upheld a sentence of 50 years' imprisonment against the appellant who murdered his brother.

Counsel further cited Florence Abbo v Uganda [2023] UGCA 17 where the court of appeal found a sentence of 40 years for a murder convict not $20$ harsh or excessive. Kamya Yekoyada v Uganda, CACA No.489 of 2015 was cited in which this Court reduced a death sentence to Life imprisonment for in a murder case.

It was pointed out that the cases cited to support the submission on the $25$ principle of consistency in sentencing by Counsel for the Appellant were not relevant to the circumstances of this Appeal. Whereas the appellant went through a full trial, the appellants in the two cases pleaded guilty which fundamentally affected the determination of the sentences imposed. The court was urged to dismiss the appeal for want of merit. 30

# **Analysis and determination**

As a first appellate court, it is our duty to re-appraise all evidence that was adduced before the trial court and come to our own conclusions on the facts and the law while making allowance for the fact that we neither saw nor heard the witnesses testify. See Kifamunte Henry v Uganda [1998] UGSC 20.

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It is also established principle that an appellate court will not interfere $\mathsf{S}$ with a sentence imposed by the trial court which has exercised its discretion on the sentence unless the exercise of the discretion resulted into the sentence imposed to be manifestly excessive or too low as to amount to a miscarriage of justice or where the trial court ignores an important matter which ought to have been considered. See Kato Kajubi $10$ Godfrey v Uganda [2021] UGSC 45 and Kiwalabye Bernard v Uganda, SC Criminal Appeal No.143 of 2001.

We further find it important to remind ourselves that sentencing is a discretionary power vested in the trial court which however must be 15 exercised judicially and in accordance with established principles. See Bikanga Daniel v Uganda [2005] UGCA 75.

The Constitution (Sentencing Guidelines for Courts of Judicature) (Practice) Directions, 2013 in part 1 of the 3<sup>rd</sup> schedule provide for a $20$ starting point of 35 years and a sentencing range of 30 years up to death when determining sentences in Murder cases. The sentence of 31 years' and 6 months' imprisonment imposed by the trial court was therefore within the sentencing range and hence lawful.

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Further still, it has variously been held by this court on the authority of Aharikundira Yustina V Uganda [2008] UGSC 49, that a sentence is deemed to be harsh and excessive if it is established to be outside the range of sentences previously imposed by the courts for similar offences.

We are further guided by paragraph 6(c) of the Constitution (Sentencing 30 Guidelines for the Courts of Judicature) (Practice Directions), 2013. The provision requires courts to take into account the need for consistency with appropriate sentencing levels and other means of dealing with offenders in respect of similar offences committed in similar circumstances. 35

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We have reviewed sentences handed down in similar cases by the courts $\mathsf{S}$ to determine whether the imposed sentence is harsh and excessive as argued by Counsel for the Appellant. In Kiiza Swaibu v Uganda, CA Criminal Appeal No.204 of 2015 this court set aside a sentence of 37 years imposed by the trial court upon the appellant who was found guilty of hacking his lover to death. The court re-sentenced him to 27 years. In $10$ Musiita & Another v Uganda [2023] UGCA 310, this court confirmed a sentence of 30 imposed on the Appellant who was found guilty of hiring people to murder the deceased.

In Aharikundira Yustina v. Uganda [2018] UGSC 49 in which the appellant was found guilty of murdering her husband by cutting off his body parts, 15 this court set aside the death sentence imposed by the trial court and substituted it with 30 years' imprisonment.

We have perused the sentencing notes by the trial Judge and noted that he only considered aggravating factors to the effect that the deceased was a young man and a friend of the appellant who had bought him waragi on the day he met his death. The court further remarked about the painful death suffered by the deceased for no clear reason.

The trial Court did not at all consider the mitigating factors in favour of the appellant during the sentencing proceedings which is a requirement $25$ of the law. A sentencing court has to take into account both the aggravating and mitigating factors before arriving at what it deems to be a sentence appropriate to the circumstances of the case. See Kyalimpa Edward V. Uganda, SCCA No.10 of 1995; Kiwalabye Bernard Vs **Uganda(Supra).**

While submitting in mitigation of the sentence, it was brought out that the appellant was a first offender and a family man with six children. The fact that the appellant had been drinking was not also considered by the court which in our view should have been taken into account in the course

of determining the sentence to be imposed. 35

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Considering the mitigating factors, we find that a sentence of 30 years $\mathsf{S}$ should have been appropriate to the circumstances in which the offence was committed. We invoke our powers under section 11 of the Judicature Act to set aside the sentence of 35 years imposed by the trial Court. We resentence the Appellant to 30 years from which the 3 years and 6 months he spent on remand is deducted. The Appellant shall serve 26 $10$ years and 6 months computed from 5<sup>th</sup> May 2015 the date he was first sentenced.

Signed, delivered and dated at Mbarara this . Z. day of May 2025.

Moses Kazibwe Kawumi **Justice of Appeal**

**Florence Nakachwa** Justice of Appeal

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$CML$

Cornelia Kakooza Sabiiti **Justice of Appeal**