Kajungu v Uganda (Criminal Appeal 47 of 2018) [2018] UGSC 98 (23 November 2018)

Full Case Text

# ! THE REPUBLIC OF UGA}TDA IN THE SUPR. EME COURT OF UGANDA AT KAMPAI-A, CRIMINAL APPEAL NO.47 OF 2018.

#### ICORAM: ARACH-AMOKO, MWANGUSYA, OPIO AWERI, BUTEERA, JJ,SC. NSHIMYE AG.]SC]

KAJUNGU EMMANUEL PELIANT

#### VERSUS

UGANDA RESPONDENT

lAppeal from the decision of Court of Appeal in Criminal Appeal No.625 of 2011, before Hon K. Kakuru, Byahakama Mugenyi, S. A. C Owiny-Dollo lJA, Criminal Appeal No. 0203 of 2009.ldted 24'u Octoher, 20141

### JUDGMEN'T OF TIIE COURT

The appellant appealed against sentence of 30years imprisonment which was imposed upon him by the Cotrt of Appeal. 20

In his memorandum of appeal, he complained that their Lordships, the Justices of Court of Appeal erred in law when they failed to adequately re-evaluate the evidence as regards sentence hence Ieading to an erroneous decision of sentence of 3Oyears.

The brief background facts of the case were that the appellant was convicted by the High Court of Murder on l3'h August 2004, contrary to sections 188 and 189 of the Penal Code. He strangled to death a young female victim. He was sentenced to suffer death.

q Following the Supreme Coutt's decision in Attorney General vs Susan Kigula & 417 others Constitutional Appeal No. O3 of 20O6, his case was sent back to the trial court to give the appellant an opportunity to be heard in mitigation of a death sentence and for re-sentencing after conducting the said mitigation proceedings.

The High Court heard his mitigation and decided to set aside a death penalty and sentenced him to life imprisonment. Being dissatisfied with the sentence of life imprisonment, he appealed to the Court of Appeal, which allowed his appeal by setting aside the sentence of life imprisonment and sentenced him to 30 years imprisonment the subject of this appeal.

He faults their Lordships on the above sentence on ground that they did not adequately re-evaluate the evidence regarding sentence. Learned counsel Henry Kunya represented the appellant duing the hearing of the appeal, while Akello Florence Owinji a Principal State Attorney appeared for the respondent.

# Suhmissions for the appellant:

It was submitted by counsel Kunya that the appellant was adopting the written submissions which were filed on his behalf. He however, in brief, elaborated that the appellant was appealing only on one ground of sentence. He faulted the Justices of Appeal for failure to sufficiently evaluate the evidence before sentencing his client.

5 In his view their Lordships did not consider family responsibilities and remorsefulness of the appellant.

He prayed that the sentence be reduced from 30years to zSyears of imprisonment.

## Submissions for the respondent:

In reply the Principal State Attorney, Akello Florence Owinji submitted that the Court of Appeal dully considered the mitigating factors. She referred us to page 3 paragraph I of the judgment of the Court of Appeal where court considered family responsibilities and repentance. She submitted that the sentence was legal and that there is no material fact that was to be considered which was left out. She prayed that the appeal be dismissed and the sentence of 30 years be maintained. 15 10

We have read the submissions of both counsel and the authorities referred to us. We have also read the record of courts below and in particular the judgment of Court of Appeal which was appealed. 20

The learned Principal State Attorney referred us our decision Kizito Senkula vs Uganda Supreme Court Criminal Appeal No. 24 of 2001.

While following an old case of Ogalo S/o Owoura VR (1954) 24 EACA, 270 this court stated: 25

"[A]n appellate court will not ordinarily interfere with the discretion exercised. by a trial judge unless the judge has acted upon some wrong principle or over looked some material factor or that the sentence is harsh and manifestly excessive in view of the circumstances of the case, or so low as to amount to a miscawiage of justice".

The appellant was convicted of a serious offence of murder which carries a death penalty. He was condemned to suffer death because at the time it was the only available sentence under the law.

He became a beneficiary <lf thc dccision of Attorney General vs Susan Kigula &Others Constitutional Appeal No. O3 of 2006.

His case was remitted back to the High Court to consider his submission in mitigation of sentence.

The death penalty was set aside and onc of the life imprisonment was imposed.

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The appellant was aggrieved by the sentence and appealed to the Court of Appeal. He complained that the learned judge of the High Court had not taken into account mitigating factors in his favour. For example that he was repentant, a family man, a first offender and that he had been on remand for two years before he was sentenced. Further that he had been in custody for a total of l Tyears and 2 months including 2 years he was on remand before he was convicted.

The court of Appeal faulted the trial judge for having overlooked factors that would have been in favour of the appellant like being a first offender, the 2 years he spent on remand and that he was a young man capable of reform. He committed the offence when he was 27 years of age.

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The Court of Appeal also for the sake of uniformity considered and compared the appellant's case with other, nearly similar six decided cases. After considering all the above mitigating factors the Court of Appeal set aside a sentence of life imprisonment and imposed one of 30 years.

We are satisfied that, the Court was alive to the submission in mitigation of the appellant among other factors that, he was a family man and that he was repentant.

We see no good reason to interfere with the discretion exercised by the Court of Appeal. See Kiwalabye Bernard vs Uganda Supreme Court Criminal Appeal No.143 of 2001.

This appeal therefore lacks merit and is accordingly dismissed. 25

Dated at Kampala this....................................

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**S. ARACH AMOKO** JUSTICE OF THE SUPREME COURT . . . . . . . . . . . . . . . . . . . .

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E. MWANGUSYA JUSTICE OF THE SUPREME COURT

**R. OPIO AWERI** JUSTICE OF THE SUPREME COURT

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**R. BUTEERA** JUSTICE OF THE SUPREME COURT

**A. S N\$HIMYE** JUSTICE OF THE SUPREME COURT