Kassimu v Uganda (Criminal Appeal 561 of 2015) [2025] UGCA 156 (20 May 2025)

Full Case Text

## THE REPUBLIC OF UGANDA

### IN THE COURT OF APPEAL OF UGANDA HOLDEN AT MBARARA

## CRIMINAL APPEAL NO.0561 of 2015

#### **KASSIMU ABDALLAH** $10$

**APPELLANT**

#### **VERSUS**

#### **UGANDA**

#### **RESPONDENT**

(An appeal from the decision of Matovu, J delivered at Mbarara on 30th July 2014 in criminal session case No.307 of 2013)

$\mathsf{S}$

[Coram: Kazibwe Kawumi, Nakachwa & Kakooza Sabiiti, JJA]

#### JUDGMENT OF THE COURT

The appellant was indicted for Aggravated Robbery contrary sections 285 and 286 (2) of the Penal Code Act and was sentenced to 17 years' $20$ imprisonment.

#### **Background**

The facts upon which the Appellant was convicted are that on 29th November 2012 while in the company of three other people, the Appellant robbed a motor vehicle, a mobile phone, a solar battery and $25$ shillings 200,000/- from one Muhebwa Ronald. The vehicle was reported to have been sold to a buyer in the Democratic Republic of Congo and it was never recovered.

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The Appellant was arrested with two other colleagues in the process of $\mathsf{S}$ robbing another motor vehicle. It transpired during the sentencing proceedings that the Appellant had in the course of the trial also been convicted and sentenced to 25 years for Aggravated Robbery by the Mbarara Division Army Court Martial. The Appellant was a soldier.

Dissatisfied with the sentence, the appellant lodged an Appeal on one ground $;-$

The learned Judge erred in law when he injudiciously exercised his discretion by sentencing the Appellant to a sentence of 17 years' imprisonment to be served cumulatively after the one of the court martial, thereby occasioning a miscarriage of justice to the Appellant.

#### Representation

Mr. Tumwebaze Emmanuel appeared for the Appellant while Ms. Happiness Ainebyona, Chief State Attorney in the Office of the Director $20$ of Public Prosecutions appeared for the Respondent. The Court validated the Memorandum of Appeal filed out of time and granted the applicant leave to appeal only against the sentence. Counsel filed submissions, which with leave of court were adopted as their arguments for the determination of the appeal. $25$

# **Submissions by Counsel for the Appellant**

It was submitted that this court shall not interfere with the sentencing direction of the trial court unless it is satisfied that the sentence imposed is manifestly excessive, or so low as to amount to a miscarriage of justice or where the trial court ignored to consider important matters or circumstances which ought to be considered when passing the sentence or where the sentence imposed is wrong in principle.

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It was argued that the trial Judge imposed a cumulative sentence $\mathsf{S}$ based on a wrong principle of the law. The attention of the Court was drawn to the case of Magala Ramathan V Uganda [2017] UGSC 34 in which the Court held that the general rule is for the High Court to impose a consecutive sentence and a convict will only concurrently serve sentences arising out of distinct offences if the court so directs. 10

It was argued that whereas it is true that the Appellant had been convicted and sentenced to 25 years' imprisonment by the court martial, it was in a different and separate trial hence the cumulative sentence imposed by the trial court should be set aside. Counsel proposed that the Appellant should be sentenced to 17 years to run concurrently with the sentence of the court martial.

# **Submissions by Counsel for the Respondent**

- It was submitted that the imposed sentence of 17 years' imprisonment 20 was neither harsh nor excessive and is computed to run from 30th July 2014 when it was pronounced by the trial Court under section 106 (2) of the Trial on Indictments Act. - Counsel argued that section 3 (2) of the Trial on Indictments Act cited 25 by Counsel for the appellant was not applicable to the circumstances of this case. It applies to situations where an accused is tried for two distinct offences in the same trial and sentences imposed from separate trials by different courts cannot be served concurrently.

It was submitted that sentencing is a discretion of the trial judge and an imposed sentence can only be interfered with on known grounds. A sentence can be set aside when it was either too harsh or too low as to cause an injustice, was premised on a wrong principle or where important factors were ignored by the sentencing court.

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$OK$

The court was urged to maintain the sentence imposed. Counsel $\mathsf{S}$ referenced Kamukama Moses v Uganda [2009] UGCA 38 where a death sentence was substituted for life imprisonment on a robbery charge. Counsel further cited **Mudhasi v Uganda [2022] UGCA 104** in which this Court upheld a sentence of 27 years' imprisonment for aggravated robbery. $10$

#### **Analysis and Determination**

We have considered the written submissions filed by the parties and perused the case law cited to the court for which we are grateful.

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The trial Judge is faulted for imposing a cumulative sentence of 42 years being the sum total of what was imposed by the Division Court Martial and the Court itself. We found it appropriate to reproduce the sentencing notes by the trial Judge for a proper appreciation of the sentencing Order issued by the Court.

The trial Judge made the following Order;

"The accused person is not a first offender and even at the time of his arrest he was on a mission to commit another offence. The property of the complainant worth Ushs. 17,000,000/= was permanently deprived from him and there is no hope of him ever recovering this property.

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This court therefore sentences the convict(A1) to seventeen (17) years' imprisonment. This sentence is to be served cumulatively after the one of the court martial and it has considered the period he was on remand. The accused has a right of appeal against the conviction and sentence."

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We noted that the fact of the Appellant's conviction and being $\mathsf{S}$ sentenced to 25 years by the Court martial arose from the submissions in aggravation of the sentence made by the State Attorney to bring out the Appellant's antecedents and lack of remorse. The Appellant was not tried and/or sentenced by the High Court to the 25 years for the earlier offence of Aggravated Robbery. Section 3 (1) (2) and (3) of the Trial on $10$

$20$

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**Indictments Act, [CAP 25]** provides for the sentencing powers of the High Court as follows;

## "3. Sentencing powers of the High Court

(1) The High Court may pass any lawful sentence combining any of the sentences which it is authorised by law to pass.

(2) When a person is convicted at one trial of two or more distinct offences, the High Court may sentence him or her for *those offences to the several punishments prescribed for them* which the court is competent to impose. Those punishments *,when consisting of imprisonment, to commence the one after* the expiration of the other, in such order as the court may direct, unless the court directs that the punishments shall run concurrently.

(3) For the purposes of appeal, the aggregate of consecutive sentences imposed under this section, in the case of *convictions for several offences at one trial, shall be deemed to be a single sentence."*

The question for the court to resolve in this appeal is whether the trial court imposed a cumulative sentence including the 25 years of imprisonment arising from a trial conducted by the Court martial.

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We are of the opinion that the trial Judge did not impose such a $5$ sentence and cannot be faulted for the sentencing order he made.

Under section 3 of the Trial on Indictments Act, a court can only impose a sentence in a trial it conducted. Where there are distinct offences handled in the same trial, the court can direct for the imposed sentences to be served either consecutively or concurrently with the former as the default position.

The Appellant was tried on only one offence and on only one count by the trial court. A reference to the imposed sentence being served after 15 the one imposed by the Court martial should not have been included in the sentencing Order. The trial Judge had not handled that aspect of the appellant's antecedents and could thus not have referred to it in his sentencing Order. Its incorporation rendered the sentence vague and illegal. 20

We thus invoke our powers under section 11 of the Judicature Act to set it aside. We re-sentence the appellant to seventeen years' (17) years to be computed from the 30th July 2014 when he was first sentenced.

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It is also evident from the wording of Section 3 (2) of the Trial on Indictments Act, that the Appellant's prayer for the 17 years to be served concurrently with the 25 years imposed by the Court martial is misconceived. An order for sentences to run concurrently must arise from offences tried by the same court in the same trial. The trial Court lacked any mandate to make orders relating to sentences imposed by the Court Martial.

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$CL$

- For the reasons advanced above regarding the wording of the $\mathsf{S}$ sentencing Order, the appeal succeeds. The appellant shall serve seventeen years starting from 30th July 2014 the date he was first sentenced. - Signed, dated and delivered at Mbarara this $\frac{26}{200}$ day of $\frac{600}{200}$ 2025. $10$

**Moses Kazibwe Kawumi Justice of Appeal**

Florence Nakachwa **Justice of Appeal**

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$CKS$

Cornelia Kakooza Sabiiti **Justice of Appeal**

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