Kamwanga & Another v Uganda (Criminal Appeal 285 of 2017) [2024] UGCA 41 (21 February 2024)


THE REPUBLIC OT' UGA. IYDA

# THE COURT OF APPEAL OF UGANDA AT KAMPALA

(Coram: Buteera, DCJ; Mulyagonja & Mugenyi, JJA)

## CRIMINAL APPEAL NO. 285 OF 2017

1. KAMWANGAJOHN 2. KITAMIRIKE MOSES APPELLANTS

VERSUS

UGANDA RESPONDENT

(Appeal from the High Court of Uganda at lganga (Luswata, J) in Criminal Session Case No. 26 of 20't 3)

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Criminal Appeal No. 285 of 2017

### JUDGEMENT OF COURT

#### A. lntroduction

- Messrs. John Kamwanga and Moses Kitamirike ('the Appellants') were indicted for the offence of murder contrary to sections 188 and 1 89 of the Penal Code Act, Cap. 120. The facts as accepted by the trial court are that following the death of Teddy Guna, wife of Ali lkoba of Bukuku village in Masese district, her body was taken to Nawansega village in Luuka district for burial. On 2lstJanuary 2013, thirty of her in-laws travelled to Bukuku village for her burial but upon arrival were attacked by her relatives for allegedly bewitching Teddy, leading to her death. The attack left Lukeman Maganda alias Arahuman ('the deceased') dead. - 2. TheAppellants, as well asAbudu Masimbi, Ronald lsabirye and Yeseri Kalogo and were charged with the deceased's murder. Following a full trial, the Appellants were convicted of the offence as charged and sentenced to 1 5 years and 16 years' imprisonment respectively, while their co-accused were acquitted. - 3. Dissatisfied with the sentence imposed by the trial court, theAppellants lodged the present appeal against sentence only on the singular ground lhat'the learned trial judge erred in law and fact when she meted out an illegal, manifestly harsh and excessive sen(erces against the Appellants.' - 4. At the hearing, Mr. Norman Pande holding brief for Mr. Henry Kunya represented the Appellant on state brief, while Ms. Happiness Ainebyoona, a Chief State Attorney appeared for the Respondent.

## B. Parties Leqal Arquments

5. The Appellants contend that this having been a mob justice case, the sentence imposed by the kial court was manifestly harsh and excessive given the legal position that perpetrators of mob justice should not be put on the same pedestal as those who plan their crimes and execute them in cold blood. lt is argued that there is a very high probability that such offences arise out of spontaneous reactions without any premeditation.

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- 6. lt is further argued that the Appellants were first offenders, had immense family responsibilities, had been on remand for four and a half years and the First Appellant was of advanced age at sentencing; and therefore had the trial judge considered those compelling mitigating factors she would not have handed down the sentences she imposed on the Appellants. ln any case, the sentences are alleged to be unclear as to whether the period spent on remand had been deducted. Counsel invites this Court to allow the appeal, set aside the contested sentences and substitute them with more appropriate sentences. - 7. Conversely, State Counsel cites this Court's decision in Adupa Ronald & others vs Uqanda. Criminal Aooeal No. 327 of 2019 where a 25-year sentence for murder was upheld, and Bavo Sundav vs Uoanda. Criminal Appeal No. 414 of 2019 where a 30-year sentence for murder was similarly upheld, for the proposition that the 15- and 16-year sentences handed down by the trial court were neither harsh nor excessive. lt is argued that the trial judge took into account both the mitigating and aggravating factors before arriving at the sentences meted out against the Appellants. She considered that it was a mob justice case and that the First Appellant was of advanced age, of ill health and with many dependents, while the Second Appellant had a large family. She further observed that the Appellants were remorseful and had spent4 Yz years on remand. - 8. State Counsel nonetheless concedes that the trial judge did not take into account the period spent on remand as required by Article 23(8) of the Constitution and propounded in Rwabuqande Moses vs Uqanda Criminal Appeal No. 25 of 2014, and invites the Court to deduct the remand period from the sentences imposed by the trial judge in accordance with section 11 of the Judicature Act.

### C. Determination

9. This being a first appeal, it is the duty of this Court to reconsider all material evidence that was before the trial Court and reach our own conclusions but bearing in mind that we did not have the opportunity to see and hear the witnesses testify. See rule 30(1) of the Judicature (Court of Appeal Rules) Directions, Kifamu nte Henry vs Uqanda Supreme Cou rt Criminal Aooeal No. 10 of 1997 and Boqere Moses vs Uqanda Supreme Court Criminal Appeal No 1 of 1997.

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<sup>1</sup>0. This Court additionally recognises trial judges' discretion at sentencing as captured in Kvalimpa Edward vs Uqanda, Criminal Aooeal No. 10 of 1995 as follows

> An appropnate sentence is a matter for the discretion of the sentencing Judge. Each case presents its own facts upon which a Judge exercises his discretion. lt is the practice that as an appellale Court, this Court will not normally interfere with the discretion of the Trial Judge unless the sentence is illegal or unless Courl is satisfied that the sentence imposed by the Tnal Judge was manifestly so excessive as lo amount to an injustice: Ooalo s/o Ouousa vr. R (1954) 21 EACA 270 and R vs. ilohammed Jamal (19,181 15 EACA '126.

- 1'1 . The same principle has since been reiterated in Kamva Johnson Wavamuno vs. Uqanda Criminal oeal No.16 of 2000 and in Kiwalabye vs. Uqanda, Supreme Court Criminal Appeal N0.143 of 2001 - 12.lt is abundantly clear from the record of appeal that the trial judge did take into account all the mitigating factors applicable to the Appellants. We therefore find no merit in that line of argument. Given that the Respondent concedes the nonconsideration of the period spent on remand, it becomes our inescapable duty to set aside the sentences handed down by the trial court and, pursuant to section <sup>11</sup> of the Judicature At, Cap. 13, undertake the re-sentencing of the Appellants. See Livinqstone Kakooza vs. Uqanda. Criminal Aooeal No.17 of 1993 (SC) and Jackson Zita vs. Uqanda. Criminal AooeaI No. 19 of 1995 (sc) - '13. We are alive to the need for consistency in sentencing as stated in clause 6(c) of the Constifution (Sentencing Guidelines for Courts of Judicature) (Practice) Directions, 2013 ('the Sentencing Guidelines'), which enjoins a sentencing court 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 sim ilar ci rcumstances.' - 14. ln Kamva Abdullah & Others vs Uqanda. Criminal Aooeal No. 24 of 2015 , the Supreme Court reduced a 30-year term sentence for murder to 18 years' imprisonment for each Appellant in an appeal that related to mob justice. lt was held:

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Without downplaying the senousness of offences committed by a mob by way ol enforcing their misguided form of justice, a wrong practice in our communities which admittedly must be discouraged, we cannot ignore the fact that, in terms of sheer cnminality, such people cannot and should not be out on the same plane in sentencino asthose who olan their crimes and execute them in cold blood. The crowd which assembled at the scene of crime, according to the evidence, consisted of about 50 people. Most of these people participated in beating the deceased to death. Police managed to arrest only a few who included the Appellants as identified by the prosecution witness. (Our Emphasrs)

- 15. Relatedly, in Mudwa vs Uqanda. Criminal Appeal No. 363 of 2017. this Court held that it was injudicious to sentence the Appellant as though the offence he had been convicted of had not been committed in circumstances of mob justice involving other offenders. The Court reduced his sentence from 30 years to 20 years, exclusive of the remand period. Furthermore, in Tumwesiqye Rauben vs Uqanda, Criminal Appeal No 181 of 2013 , this Court similarly reduced a 30-year custodial sentence to 20 years exclusive of the remand period in respect of an Appellant that had together with others beaten the deceased to death. Further reference is made to Adiqa vs Uqanda {.20211UGCA2 where this Court set aside a life sentence for murder and substituted it with a sentence of 19 years and 3 months imprisonment. - 16. We might have been disinclined to reconsider the sentences imposed upon the Appellants given the foregoing sentence range, but take due cognisance of the First Appellant's very advanced age. He was 73 years old at sentencing, while the Second Appellant was 39 years old. The sentencrng principle of parsimony posits that 'the sentence must be no more severe than is necessary to meet the purpose of sentencing.'1 Stated differently, punishment should not be more severe than is necessary. - 17. We do recognise that the purpose of sentencing in Uganda is 'to promote respect for the law in order to maintain a just, peaceful and safe society.' See c/ause

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<sup>1</sup> See Report of the Sentencing Advisory Committee of Australia at htlDs://www.sentencinscouncil.voc.gov.aulaboutentenc in s,i sentenc ing-orinc io les-oumoses-t'actors

5(1) of the Constitution (Sentencino Guidelines for CourIs of Judica ture) (Practtce Directio s.2013 ('the Sentencing Guidelines'). Nonetheless, we are equally mindful of the duty upon a sentencing court to consider an offender's personal and family background, the circumstances pertaining to him/ her at the time the offence was committed or indeed any other circumstances that the court considers to be relevant. See c/ause 6(e), (il and (i) of the Sentencing Guidelines.

- 18. Clause 9 of the Sentencing Guidelines provides specific direction on the applicability of custodial sentences. For ease of reference, clause 9(3) and (4)(a): - (1) - (2) - (3) The court shall before imposing a custodial sentence consider- - (a) Whether the purpose of sentencing cannot be achieved by a sentence other than imprisonment; - (b) the values, norms and aspirations o, the people within the community; - (c) the characler and antecedents of the offender; - (d) the circumstances and nature of the crime committed; - (e) the ruthlessness with which the otlender committed the offence; - (0 the health and mental state ofthe offender; - (g) previous conviction record; - (h) the aoe ofthe offender; - (i) remorseruln\*s or conducl ofthe offender; - (j) whether the offender may be a danger to the community; - (k) vieltn o, the victim's family or community; or - (l) any other matter that court considers relevant. - (4) The court may not sentence an offender to a custodial sentence where the offender- - (a) is of advanced aoe; - (b) has a grave terminal illness certified by a medical practitioner; - (c) was below 18 years at the time of the commission ot the offence; or - (d,) is an expeciant woman. (Our emphasrs)

19. Mindful as we are of the discretion that was available to the trial court at sentencing, it seems to us that the lower court did not take into account the First Appellant's advanced age and the caution in clause 9(4)(a) above. To compound matters, we are alive to the unenviable position in which he found himself of having just lost his

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daughter whose death he believed to have been caused by her in-laws and was thus susceptible to extreme emotions that could have impacted his sense of judgment. We do consider this, as well as his advanced age be to be strong mitigating factors. We would, however, balance that consideration with lhe values, norms and aspirations of the community that would certainly not condone the primitive deprivation of life. ln our view, the totality of these circumstances would render a long custodial sentence unduly punitive but warrant a relatively shorter sentence.

20. ln John Kasimbazi & Others vs Uoanda Criminal Aooeal No. 167 of 2013 a sentence of life imprisonment for murder was on appeal substituted with a 12-year sentence by this Court. We take the view that an 11-yeat sentence would be more appropriate to the circumstances of this case as highlighted above, from which the period spent on remand would be deducted to yield a sentence of 6 lz years. However, the 16-year sentence imposed on the Second Appellant is maintained.

#### D. Disposition

- 21. The First Appellant was convicted on lstAugust 2017 therefore as at February 2024 he would have fully served lhe 6 % year sentence. - 22.|n lhe result, theAppeal against sentence is partially allowed in the following terms: - The sentence of 15 years' imprisonment handed down to the FirstAppellant is hereby substituted with a custodial sentence of 11 years, from which the period of 4 y2 yea-s spent on remand is deducted to yield a sentence of seven (6) years and six (6) months to run from the date of conviction. - ll. Having fully served his custodial sentence, it is ordered that the First Appellant be discharged forthwith unless held on any other lawful charges. - lll. The Second Appellant's sentence of 16 years is upheld, from which the period of 4 y2 yearc spent on remand is deducted to yield a sentence of eleven (11 ) years and six (6) months to run from the date of conviction.

It is so ordered

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7l5t, Dated and delivered at Kampala this day of ..............., 2024.

hard Buteera

Deputv Chief Justice

lrene Mulyagonja

Justice of Appeal

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Monica K. Mugenyi

Justice of Apoeal