Kidega v Uganda (Criminal Appeal 570 of 2015) [2019] UGCA 2089 (20 February 2019)

## THE REPUBLIC OF UGANDA.

### IN THE COURT OF APPEAL OF UGANDA AT ARUA

## CRIMINAL APPEAL NO 570 OF 2015

KIDEGA FRANCIS}....................................

**VERSUS**

UGANDA)...................................

(Appeal from the Sentence of the High Court sitting at Gulu by Hon. Mr. Justice Wilson Masalu Musene in Criminal Session Case No. 0033 of 2013 imposed on the 13<sup>th</sup> of August 2014)

CORAM: Hon. Mr. Justice Kenneth Kakuru, JA

Hon. Mr. Justice Ezekiel Muhanguzi, JA

Hon. Mr. Justice Christopher Izama Madrama, JA

## JUDGMENT OF THE COURT

### Background

The appellant was charged with the offence of Murder contrary to sections 188 and 189 of the Penal Code Act, Cap 120 and convicted on his own plea of guilt, whereupon he was sentenced to 25 years imprisonment. He filed this appeal against sentence alone and the ground of appeal is that:

"The learned trial Judge erred in law and fact when he imposed a severe sentence of 25 years."

The facts read back to the appellant and which he admitted after his own plea of guilt was as follows: The appellant on the night of 9<sup>th</sup> October 2012 at Layibi corner, in Gulu Municipality, attacked the deceased, Bernard Ochora from the place where they were drinking. The appellant was stopped twice by people who were around from assaulting Ochora (the deceased). The deceased left with his wife, Santa Akello. The accused followed him on the way. He was armed with a club with which he hit the deceased. He hit him on the head after chasing him. The appellant walked away after telling Anywar George that he had finished his work. The deceased was rushed to Gulu Regional Hospital where he died on 10<sup>th</sup> October, 2014. The appellant was charged accordingly and the death certificate was already on record.

The facts were read after prosecution had led evidence of PW1 Acan Karla and PW2 Anywar George. At the first appearance the appellant was willing to plead guilty to a lesser charge of manslaughter but the prosecution said it was ready to prove murder. The appellant pleaded not guilty but later changed his plea to guilty after PW1 and PW2 had testified.

## Representation

At the hearing of the appeal, learned counsel Mr. Odama Henry appeared for the appellant while the learned Senior State Attorney Ms. Harriet Adubango appeared for the respondent.

## Submissions of the appellant

The appellant's counsel with leave of Court granted under section 132 (1) (b) of the Trial on Indictments Act, presented arguments in support of the sole ground against sentence only. Secondly, with leave of court the appellant's counsel addressed court through written submissions while the respondent's counsel replied orally.

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The appellant's counsel submitted that sections 5, 6, $2^{nd}$ and $3^{rd}$ Schedule to the Sentencing Guidelines No. 8 of 2013 requires consideration of aggravating and mitigating factors by the trial court before passing an appropriate sentence, Learned counsel submitted that the court ought to have considered the prevailing circumstances at the time the offence was committed before passing sentence. Counsel further relied on Black's Law Dictionary 10<sup>th</sup> Edition for the definition of "circumstances". This was that it is an accompanying or accessory fact, event or condition such as a piece of evidence that indicates the probability of an event. While the word "prevailing" means firstly to obtain the relief sought in an action and secondly to be commonly accepted or predominant. Counsel further argued that this should include the "health status" of the appellant who, according to the evidence is a diabetic patient on medication.

The appellant's counsel further submitted that the appellant is a first

offender, is diabetic, was remorseful and pleaded guilty. He asked court to consider the case of Tumwesigye Anthony v Uganda; Court of Appeal Criminal Appeal No. 46 of 2012 in which the appellant was convicted of murder and sentenced to 32 years imprisonment. On appeal, the sentence was quashed and substituted with a sentence of 20 years imprisonment.

The crux of the arguments of the appellant's counsel is that, had the court

considered the prevailing circumstances of the case, the appellant would have been given a less severe sentence.

# Submissions of the respondent

The respondent argued that the sentence of 25 years imprisonment was not harsh and excessive because the trial Judge took into consideration both the mitigating and aggravating factors and arrived at an appropriate sentence. The appellant was restrained several times from assaulting the deceased but went ahead and hit him on the head causing his death.

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## Consideration of the appeal

We have carefully considered the facts and circumstances of this appeal from the appeal record, the submissions of counsel, judicial precedents and the law generally.

This is an appeal against sentence alone and in a situation where the facts are not contested because the appellant pleaded guilty after prosecution adduced the evidence of two witnesses. He accepted specific facts read to him thereafter. We cannot therefore dwell much on the uncontested facts. We are however mindful of the duty of this court to subject the evidence to fresh scrutiny. The duty of this Court as a first appellate court in any appeal from a decision of the High Court made in the exercise of its original jurisdiction, is set out by Rule 30 (1) (a) of Rules of this Court which

30. Power to reappraise evidence and to take additional evidence (1) On any appeal from a decision of the High Court acting in the exercise of its original jurisdiction, the court may—

(a) Reappraise the evidence and draw inferences of fact; and

In the reappraisal of evidence, the court warns itself that it has neither seen nor heard the witnesses and should therefore make due allowances in that regard (see Pandya v R [1957] EA 336, Kifamunte Henry v Uganda; SCCA No. 10 of 1997 and Selle and Another v Associated Motor Boat Company [1968] EA 123).

This is an appeal against sentence only and in considering it the principles are that an appellate court will not interfere with a sentence imposed by the High Court in the exercise of its original jurisdiction on the mere ground that the members of the court might have passed a 'somewhat different sentence' if they had tried the appellant. The court will only interfere where

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it is established that the trial judge acted upon a wrong principle or principles or that the trial judge overlooked some material factor or factors. Secondly, the court will interfere with the sentence imposed by the trial court where it finds that it is manifestly excessive or so low as to amount to a miscarriage of justice in the circumstances. These principles were held to be firmly established by the East African Court of Appeal in Ogalo s/o Owoura v R (1954) 21 EACA 270 where they stated that:

"The principles upon which an appellate court will act in exercising its jurisdiction to review sentences are firmly established. The Court does not alter a sentence on the mere ground that if the members of the court had been trying the appellant they might have passed a somewhat different sentence and it would not ordinarily interfere with the discretion exercised by a trial judge unless as was said in James v. R. (1950) 18 EACA 147, "it is evident that the judge has acted upon wrong principle or overlooked some material factor". To this we would also add a third criterion, namely, that the sentence is manifestly excessive in view of the circumstances of the case:"

The court can also interfere with sentence on the ground of illegality of sentence or principles applied. This appears from a restatement of the principles of sentencing by the Supreme Court of Uganda in Kyalimpa Edward v Uganda; Criminal Appeal No. 10 of 1995 when they held that:

"It is the practice that as an appellate court, this court will not normally interfere with the discretion of the sentencing judge unless the sentence is illegal or unless the court is satisfied that the sentence imposed by the trial judge was manifestly excessive as to amount to an injustice: Ogalo s/o Owoura v R (1954) 21 EACA 270 and R v Mohamedali Jamal (1948) E. A. C. A. 126" (Emphasises supplied)

Although this appeal is against sentence alone, we are required to ascertain whether the conviction itself was legal. Accordingly we have to inquire into whether or not the plea was unequivocal.

We emphasise that in this case, the appellant pleaded guilty and the prosecution read out the facts to him and he agreed to the facts. The circumstances of this case are peculiar because two witnesses of the prosecution had testified. The appellant did not in agreeing to the facts of the prosecution admit the facts in the testimony of PW1 and PW2 after pleading not guilty initially.

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T

As disclosed in the notes of the learned trial Judge, the appellant on the $4^{\rm th}$ of August 2014 intimated to the court that he wanted to plead guilty to a lesser charge of manslaughter. The prosecution informed court that they were ready to proceed on a charge of murder whereupon two witnesses were heard that day. Upon the testimony of PW1 and PW2, the appellant intimated to court in the next hearing on 12<sup>th</sup> August 2014 that he wanted to change his plea to guilty and once again the indictment for murder was read and explained to the appellant whereupon he said:

"It is true but I was drunk."

We have taken note of the fact that the plea initially seemed equivocal and discloses a mitigating factor whose facts if further probed, may either diminish responsibility for murder by reducing it to manslaughter, or mitigate the severity of the penalty to be imposed for the offence of murder. However, when the facts were read out the appellant agreed with all of them and the plea became unequivocal. These are the facts the appellant agreed to:

"The accused in the night of $9^{\rm th}$ /10 $^{\rm th}$ October, 2012 at Layibi corner within Gulu municipality, attacked the deceased, Bernard Ochora from the place where they were drinking. The accused was stopped twice

by people who were around from assaulting Ochora. Ochora left with his wife, Santa Akello. The accused followed them on the way. He was armed with a club (with) which he hit the deceased. He hit him on the head after accusing him. Accused walked away after telling Anywar George that he had finished his work. Ochora was rushed to Gulu Regional Hospital where he died on 10<sup>th</sup> October, 2014 (2012?). Accused was arrested and charged accordingly. The death certificate is already on record."

The question whether the facts are true and correct, he answered that they were true and correct. In the premises the only issue is whether there are any grounds for further mitigation of sentence. After convicting the appellant on his own plea of guilty, the learned trial

Judge decided to hear from the widow and mother of the deceased on what they thought should be the appropriate sentence before imposing sentence. Akello Santa, the widow was not a witness. Secondly she prayed that the court imposes 50 years imprisonment. Secondly, Among Vicentina, the mother of the deceased prayed for the death penalty but likewise had not testified as she was not a witness. The two persons the trial judge asked about appropriate sentence were weeping in court.

The learned trial judge took into account the fact that the deceased and the appellant had gone to celebrate Uganda's Independence Jubilee on 09 October 2012. He noted that the appellant was stopped from assaulting the deceased at the bar, but even followed him while the deceased was on the way home and brutally murdered him. He noted the submission of the appellant's counsel that the appellant was a young man who needs time to reform. He however noted that the deceased was equally a young man who is now gone forever. He further noted that the appellant is said to have four young children of his own and other orphans of whom he is the breadwinner. On the other hand the deceased has equally left behind a

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dependent mother and a lovely young wife forever. The appellant was a first offender who is remorseful by changing his plea to that of guilty but these factors are outweighed by the aggravating factors which included following the deceased even after they were separated from fighting and crudely hammering him on the head with a club in the presence of his wife. The following passage inter alia is what the learned trial Judge read out in sentencing:

"This is not to forget that the utterances by the convict that he had finished his job. Not a job well done, but a deadly job, an illegal, dangerous and outlawed job. It was not a job to be proud of as a way of celebrating Uganda's Jubilee Independence Anniversary. The courts in such instances have to give a deterrent sentence which will serve as a lesson to members of the general public."

We note that the learned trial judge erred to consider the prayers of the two relatives of the deceased where his role was to promote reconciliation under article 126 (2) d) of the Constitution of the Republic of Uganda. Secondly he ought not to compare the circumstances of the deceased in terms of the family he left behind with that of the appellant. Whatever the circumstances of a deceased, they do not deserve to be killed. Appropriateness of sentence should be based on the motivation for the murder as well as the method it was carried out.

The above notwithstanding the learned trial Judge did not consider the fact that the appellant was drunk. This was a material element which would diminish the severity of sentence. Secondly he was a first offender and the offence was committed after a fight between the deceased and the appellant. The parties were separated twice but unfortunately the appellant still followed the deceased and clubbed him leading to his death.

We are of the considered opinion that the learned trial judge took into account extraneous factors and in the premises we set aside the sentence and substitute it with a sentence of our own.

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Having considered the above factors and taking into account the 2 years the appellant spent on remand before his conviction, we exercise our discretion under section 11 of the Judicature Act and resentence the appellant to 8 years imprisonment from the date of his conviction on 13<sup>th</sup> August 2014.

Justice Christopher Madrama has not signed this judgment as he did not agree with it. He has given in writing his reasons for not doing so.

Dated at Kampala the 20 day of February 2019.

Kenneth Kakuru

JUSTICE OF APPEAL

Ezekiel Muhanguzi JUSTICE OF APPEAL

Christopher Madrama Izama JUSTICE OF APPEAL

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