Kawesi and Another v Uganda (Criminal Appeal 31 of 2020) [2024] UGCA 272 (16 August 2024)

## THE REPUBLIC OF UGANDA

# IN THE COURT OF APPEAL OF UGANDA AT KAMPALA

[Coram: Egonda-Ntende, Barishaki Cheborion & Mugenyi, JJA]

## Criminal Appeal No. 31 of 2020

(Arising from High Court Criminal Session Case No. 142 of 2018)

## **BETWEEN**

| Kawesi Moses | | |-----------------|--------------------| | | Appellant No.1 | | Tushabe Julius= | $=$ Appellant No.2 | | | AND |

Uganda-

Respondent

(On Appeal from the judgment of the High Court of Uganda (Kwesiga, J.,) delivered on the 22nd October 2019 at Kampala)

## JUDGMENT OF THE COURT

#### Introduction

- [1] The appellants were convicted of the offence of aggravated robbery contrary to sections 285 and 286 (2) (of the Penal Code Act. The particulars of the offence were that the appellants on the 3rd of August 2017 at Makindye in Kampala District robbed one Byamukama Dezi Derio of his motor cycle, registration no. UEE 330J, Bajaj Boxer, red in colour, valued at Shs.3,000,000.00 and immediately before, during or after the said robbery, used a deadly weapon, to wit a panga, upon the said Byamukama Dezi Derio. They were sentenced to life imprisonment. Dissatisfied with the sentence they now appeal against it. - [2] The appellants contend in their sole ground of appeal that the learned trial Judge erred in law and fact when he sentenced the appellants to life imprisonment which was manifestly harsh and excessive in the circumstances. - [3] The respondent concedes the appeal on the ground that the learned trial Judge did not consider at all any of the mitigating factors available in the case to the appellants. The respondent prays that this court, exercising its powers under section 11 of the Judicature Act should sentence the appellants afresh.

#### Representation

The appellant was represented by Ms Shamim Nalule while the $[4]$ Respondent was represented by Mr Simon Ssemalemba, Senior Assistant Director of Public Prosecutions, in the Office of the Director of Public Prosecutions. The hearing proceeded on written submissions filed by counsel in the matter.

### **Facts of the Appeal**

- [5] Byamukama D D owned a motorcycle, registration no. UEE 330J, which he used as a 'boda boda' rider for ferrying passengers. On the material day he was hired by the 2 appellants to take them to a certain stage for shs.4,000.00. On the way appellant no.1 told the complainant to stop. As the appellant no.1 pretended to the pay the complainant, both the appellants and some other persons attacked the complainant with a panga and inflicted multiple injuries upon the complainant including severing off his hand. They forced him off the motorcycle and rode it away. - [6] A good Samaritan helped the complainant to report to the police and he was taken to Mulago Hospital. He was interviewed by the police. As a result of the information provided the police arrested the appellant no.1 while riding the complainant's motorcycle. Appellant No.1 supplied information to the Police that led to the arrest of appellant no. 2. - Both appellants were tried with another person and the 2 appellants were [7] convicted while the third person was acquitted. Both appellants were sentenced to life imprisonment, hence this appeal.

## **Analysis**

This appeal proceeded against sentence only with the permission of this [8] court. Before we consider the ground raised, we shall reiterate the circumstances in which this court may interfere with a sentence imposed by the trial court. It is now well settled that this court can only interfere with a sentence imposed by a trial court where the sentence is either illegal or founded upon a wrong principle of the law. An appellate court may equally interfere with the sentence where the trial court has not considered a material factor in the case or has imposed a sentence which is harsh and manifestly excessive in the circumstances of that particular case. See Kyalimpa Edward v Uganda, Supreme Court Criminal Appeal No 10 of 1995 (unreported): Kiwalabye Bernard v Uganda, Supreme Court Criminal Appeal No. 143 of 2001 (unreported) and Ninsiima Gilbert v Uganda [2014 UGCA 65; and Bashir Ssali v Uganda [2005] UGSC 21.

Page 2 of 4

- [9] Counsel for the appellant Mr. Simon Ssemalemba conceded, rightly in our view, that the learned trial Judge had not considered the mitigating factors in favour of the appellants which were that both appellants were first offenders and of youthful age. At the time they were charged appellant no.1 was 21 years old while the appellant no.2 was 30 years old. He prayed that this court determines a fresh sentence for the appellant. - [10] The learned trial Judge gave his reasons for the sentence which we reproduce here below in full.

'I have considered that this was robbery committed with brutal violence. The victim lost his hand. He was cut several times on the most vulnerable parts of a human being, the head. The culprits amputated the victim's hand. The offences of Aggravated robbery and homicide in theft of motorcycles in this country are so alarming that the Judicial system must show the displeasure through harsh punishments and protect society by keeping away those convicted from society. Therefore I sentence each of the two accused persons to LIFE IMPRISONMENT'

- [11] Indeed, as conceded by the Mr Simon Ssemalemba, the learned trial judge never considered the mitigating factors in the case. This was an error which obliges us to interfere with the sentence. The appellants had no previous record. They were first offenders. Secondly, they were youthful offenders with a likelihood for reform and being able to be rehabilitated and return to society as useful members thereof. Nevertheless, they committed a heinous offence disabling the complainant with the amputation of his hand. - [12] We deem a sentence of 20 years' imprisonment appropriate in this case against each of the appellants from which we deduct the period of 2 years and 2 months spent on remand. We order each appellant to serve a sentence of 17 years and 10 months' imprisonment from the 22nd October 2019, the date of conviction. Pursuant to section 286 (4) of the Penal Code Act, we also order the appellants jointly and severally to compensate the complainant in the sum of shs. 20,000,000.00 for the loss and injury suffered by the complainant, because of this crime.

Dated, signed and delivered at Kampala this 6 day of August 2024

Fredrick Egonda-Ntende **Justice of Appeal**

Page 3 of 4

Barishaki Cheborion Justice of Appeal

Tuio Dr. Asa Mugenyi **Justice of Appeal**