Kakooza v Uganda (Criminal Appeal 42 of 2017) [2024] UGCA 166 (17 July 2024)

## THE REPUBLIC OF UGANDA IN THE COURT OF APPEAL OF UGANDA AT MASAKA CRIMINAL APPEAL NO. 0042 OF 2017

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(Coram: Hellen Obura, Muzamiru M. Kibeedi & Moses K. Kazibwe JJA)

## ::APPELLANT KAKOOZA PETER::::::::::::::::::

## **VERSUS**

## UGANDA:::::::::::::: ::::::::::::::::::::::::::::::::::::::

(An appeal from the decision of the High Court at Masaka before John Eudes Keiterima, J dated 23<sup>rd</sup> January, 2017 in Criminal Session Case No. 0189 of 2016).

**JUDGMENT OF THE COURT**

This is an appeal arising from the decision of the High Court (Keiterima, J) at Masaka in which the appellant was convicted, on his own plea of guilty, of murder contrary to sections 188 & 189 of the Penal Code Act and sentenced to 30 years' imprisonment.

The brief facts of this appeal as ascertained from the court record are that on 10<sup>th</sup> June 2016 the appellant Kakooza Peter alias Kacheka while at Kirurua Village in the Sembabule District murdered Kyomugisha Evelyn. He was arrested, charged and convicted, on his own plea of guilty, of the offence of murder and was accordingly sentenced to 30 years' imprisonment. Being dissatisfied with the sentence passed, the appellant appealed to this Court on grounds that: -

- "The trial judge erred in law and in fact in sentencing the appellant to 30 years' imprisonment which $1.$ was a manifestly harsh and excessive sentence in the circumstances thereby occasioning a miscarriage justice. - The trial judge erred in law and in fact when he sentenced the appellant to 30 years' imprisonment 2. without subtracting the period spent on remand."

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- At the hearing of this appeal, Mr. Innocent Kaliba represented the appellant on State Brief $\mathsf{S}$ while Mr. Semalemba Simon Peter, Assistant Director of Public Prosecution appeared for the respondent. Appellant was in court. Counsel for the appellant sought leave to appeal against sentence. Both parties filed written submissions which they prayed to adopt and they were accordingly adopted and considered in this judgment. - On ground 1, counsel submitted that the sentence of 30 years' imprisonment is a harsh and 10 excessive sentence in the circumstances of the case. He argued that the learned trial Judge imposed a sentence of 30 years which is the starting point of sentencing in murder cases and that was a clear indication that he never considered the mitigating factors while sentencing as provided for under the Constitutional (Sentencing Guidelines for Courts of Judicature) (Practice) Directions, 2013 (Sentencing Guidelines). He contended that had the learned trial 15 Judge considered the mitigating factors he would have arrived at a fair sentence.

Counsel also submitted that the sentence violates the principle of consistency as provided for under guideline 6(a) of the Sentencing Guidelines. He cited the cases of **Suzan Kigula vs** Uganda, HCT-00CR-SC-0115; Uganda vs Uwera Nsenga, CACA No. 312 of 2013 and **Godi Akbar vs Uganda, SCCA No.3 of 2013** and argued that the sentences in these similar 20 cases range between 20-25 years. Counsel thus contended that the sentence of 30 years is out of range considering the mitigating factors. He prayed that this ground of appeal succeeds and the sentence of 30 years be set aside and substituted with a sentence of 20 years' imprisonment.

On ground 2, counsel submitted that the learned trial Judge erred in law and in fact when he $25$ sentenced the appellant to 30 years' imprisonment without subtracting the period of 6 months the appellant spent on remand. He argued that the wording of the sentence was not in line with the legal requirement of arithmetically considering the period spent on remand as provided for under Article 23 (8) of the Constitution and the Supreme Court decision of **Rwabugande vs Uganda SCCA No. 25 of 2014.** Counsel prayed that this Court finds the 30

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sentence of 30 years' imprisonment illegal and the same be set aside. He proposed a $\mathsf{S}$ sentence of 20 years' imprisonment from which the period of 6 months spent on remand should be deducted.

Counsel for the respondent stated that they had no objection to the appellant's application for leave to appeal against sentence only. He then submitted on ground 1 that the sentence of 30 years' imprisonment passed against the appellant was neither harsh nor excessive in the circumstances. He added that it is evident from the sentencing proceedings that while passing sentence, the learned trial Judge took both the mitigating and aggravating factors into consideration before arriving at an appropriate sentence of 30 years' imprisonment.

- He referred to the decision in the following cases of murder to buttress his submissions: -Aharikundira vs Uganda, SCCA No.27 of 2015 where the Supreme Court set aside a death 15 sentence and substituted it with a sentence of 30 years' imprisonment; *Uwayimana Molly vs* **Uganda, CACA No. 103 of 2009** where this Court substituted a death sentence with 30 years' imprisonment; Okiru Isaiah alias Opolot vs Uganda, CACA No. 097/2018 where this Court upheld a sentence of 36 years, 2 months and 15 days; and **Guloba Rogers vs Uganda**, **CACA No.** 57/2021, where the appellants were convicted of two counts of murder and 20 aggravated robbery and sentenced to 47 years imprisonment on each count. On appeal this court substituted the sentence with 35 years on each count. In comparison to the above decisions, counsel submitted that the 30 years imposed in the instant appeal is neither harsh nor excessive in the circumstances. - In regard to ground 2, counsel conceded that the learned trial Judge did not take into account $25$ the period of 6 months the appellant spent on remand which makes the sentence passed illegal for failure to comply with the mandatory requirement of Article 23 (8) of the Constitution and the decision of **Rwabugande Moses vs Uganda** (supra). He invited this Court to exercise its powers under Section 11 of the Judicature Act and deduct the period of 6 months ( from the 30 years' imprisonment passed against the appellant. 30

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This Court has a duty to re-evaluate the evidence before it and come up with its own $\mathsf{S}$ conclusion on the findings of fact and law. See; rule 30(1) of the Judicature (Court of Appeal Rules) Directions and *Kifamunte Henry vs Uganda SCCA No. 10 of 1997*.

Counsel for the appellant sought leave to appeal against sentence only and since there was no objection by the respondent, leave was accordingly granted. We note that ground 2 of the appeal is on legality of sentence and therefore we will resolve it first as it may have the effect of disposing of the appeal.

The law is now settled that an appellate court is not to interfere with a sentence imposed by a trial court which has exercised its discretion on sentence unless the exercise of the discretion is such that it results in the sentence imposed being manifestly excessive or so low as to amount to a miscarriage of justice, or where a trial court ignores to consider an important matter or circumstance which ought to be considered when passing the sentence or where the sentence imposed is wrong in principle. See: *Kyalimpa Edward vs Uganda, SCCA No.* 10 of 1995 and Kiwalabye Benard vs Uganda, SCCA No. 143 of 2001

In his submissions on ground 2, counsel for the appellant contended that the learned trial Judge did not take into account the period of 6 months the appellant spent on remand. 20 Counsel for the respondent conceded to this ground and urged this Court to deduct the period of 6 months spent on remand from the sentence of 30 years that was imposed by the trial court.

Courts are required while sentencing to take into account the period a convict spends in lawful custody prior to completion of his or her trial and failure to do so renders the sentence passed $25$ illegal. See: Article 23 (8) of the Constitution and the Supreme Court decision in **Rwabugande** Moses vs Uganda (supra).

We note that while the learned trial Judge was sentencing the appellant at page 7 of the $\cdot$ 5 record of proceedings he stated as follows;

> "I have heard both the aggravating and mitigating factors. The accused's crime was heinous to say the least. The person he was meant to protect was the person he killed brutally and in the process also killed an innocent foetus. He is a danger even to his children. I have considered the period the convict has spent on remand and I will now sentence him to 30 (thirty) years imprisonment. The convict has a right of appeal against the sentence. "(*Emphasis added*)

We also note that this sentence was passed on 23<sup>rd</sup> January 2017 before the decision in **Rwabugande Moses vs Uganda** (supra) was delivered on 3<sup>rd</sup> March 2017. This implies that the learned trial Judge was bound to follow the sentencing regime of the pre-Rwabugande period which only required him to indicate that he had taken into account the period the convict (appellant) had spent on remand. The was no requirement for an arithmetic deduction of the period a convict spent on remand. See: *Kizito Senkula vs Uganda, SCCA No. 24 of 2001*; Kabuye Senvawo vs Uganda, SCCA No. 2 of 2002; Katende Ahmed vs Uganda, SCCA No. 6 of 2004 and Bukenya Joseph vs Uganda, SCCA No. 17 of 2010.

We observe from the above wording of the sentencing ruling that the learned trial Judge 20 expressly stated that he had considered the period the appellant spent on remand before sentencing as required by the then sentencing regime. In the premises, we do not accept the submissions of both counsel that the sentence imposed was illegal for failure by the learned trial Judge to take into account the period the appellant spent on remand. We therefore find the sentence of 30 years' imprisonment imposed on the appellant legal. Consequently, 25 ground 2 of the appeal fails.

In regard to ground 1, counsel for the appellant contends that the sentence of 30 years is harsh and excessive because the learned trial Judge did not consider the mitigating factors. We note from the sentencing record that after both the prosecution and defence counsel had

presented the aggravating and mitigating factors, the learned trial Judge stated that he had $\mathsf{S}$ *"heard both the aggravating and mitigating factors".* He then went ahead to expressly single out some of the aggravating factors before he arrived at the sentence he found appropriate. In our considered view, by so doing, the learned trial Judge's decision was informed by those highlighted factors. The mitigating factors that were presented for the appellant that; he had no previous criminal record, he pleaded guilty and did not waste court's time and he is a father 10 of 4 children who he has left alone, were not expressly singled out and weighed against the aggravating factors that were highlighted.

In Sseruyange vs Uganda CACA No. 080 of 2010 this Court was faced with a similar situation where the learned trial Judge stated in his sentencing ruling that he had considered both the aggravating and mitigating factors but went ahead to expressly point out the aggravating factors without doing the same to the mitigating factors. On appeal this Court analysed the remarks of the trial court and held as follows: -

"Although the learned trial Judge remarked that she had considered all the mitigating and aggravating factors, it is our view, that a reasonable person would conclude from reading those remarks that it was the factors that the learned trial Judge explicitly referred to, that prominently weighed on her mind as she sentenced the appellant."

The end result was that the sentencing discretion of the trial court was interfered with and the sentence set aside as he was found not to have taken into account a material consideration in sentencing. In the same vein, we find that the learned trial Judge in this case failed to consider material factors while sentencing the appellant.

For that reason, we would have been inclined to interfere with the exercise of discretion by the learned trial Judge by setting aside the resultant sentence of 30 years imposed on the appellant. However, pursuant to section, 139 (1) of the Trial on Indictment Act, we have found

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it necessary to consider the range of sentences previously imposed by this Court in offences $\mathsf{S}$ of a similar nature in order to determine whether the failure of the learned trial Judge to consider the material factors while sentencing the appellant occasioned a miscarriage of justice to him.

139(1) of the Trial on Indictments Act provides thus: -

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"Subject to the provisions of any written law, no finding, sentence or order passed by the High Court shall be reversed or altered on appeal on account of any error, omission, irregularity or misdirection in the summons, warrant, indictment, order, judgment or other proceedings before or during the trial unless the error, omission, irregularity or misdirection has, in fact, occasioned a failure of justice."

In *Oyita Sam vs Uganda*, *CACA No. 307 of 2010*, the appellant murdered his own brother over land wrangles and he was convicted on his own plea of guilty and sentenced to death. 15 On appeal to this Court, his sentence was substituted with 25 years' imprisonment.

In *Mwerinde Lauben vs Uganda, CACA No. 151 of 2013*, this Court set aside a sentence of 35 years' imprisonment imposed on the appellant who pleaded guilty for murdering his aunt and substituted it with a sentence of 30 years' imprisonment.

In *Tukahabwe Edson vs Uganda, CACA No. 152 of 2013*, this Court set aside a sentence 20 of 50 years' imprisonment imposed on the appellant who pleaded guilty for murder and substituted it with a sentence of 30 years' imprisonment.

Upon considering the sentences in the above cases and taking into account both the aggravating and mitigating factors, we find the sentence of 30 years imposed on the appellant within the range of sentences previously imposed by this Court for murder and as such, there was no miscarriage of justice occasioned to him as a result of the learned trail Judge's failure to consider material factors. $\mathcal{L}$

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In the result, we find no reason to interfere with the sentence. Both grounds of this appeal $\mathsf{S}$ therefore fail and the appeal is accordingly dismissed.

We so order.

Dated at Masaka this 17<sup>th</sup> day of July 2024.

Hellen Obura

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**JUSTICE OF APPEAL**

Muzamiru M. Kibeedi **JUSTICE OF APPEAL**

Moses K. Kazibwe **JUSTICE OF APPEAL**

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