Kigoye v Uganda (Criminal Appeal 645 of 2015) [2024] UGCA 180 (16 July 2024)

# THE REPUBLIC OF UGANDA IN THE COURT OF APPEAL OF UGANDA AT MASAKA **CRIMINAL APPEAL NO.0645 OF 2015**

(CORAM: Hellen Obura, Muzamiru Mutangula Kibeedi, Moses Kazibwe

Kawumi, JJA)

**KIGOYE JOHN**

APPELANT

## **VERSUS**

## **UGANDA**

$\overline{5}$

$10$

### **RESPONDENT**

# (Appeal from the judgment of Lady Justice Margaret Oguli-Oumo delivered on 13<sup>th</sup> May 2014)

## JUDGMENT OF THE COURT

The Appellant was convicted for Aggravated defilement contrary to sections 129(3) and (4) of the Penal Code Act and sentenced to 24 years. The Appellant lodged an appeal against only the sentence.

#### Background. $15$

On 5<sup>th</sup> January 2013 the victim and other children were sent to collect firewood. On the way they met the convict who directed them to where they would easily get the firewood and in the process isolated the victim from other children.

- 20 The convict took the victim to a secluded location and defiled her. The victim cried for help and was rescued by men who found the convict in the sexual act. He fled the scene and the victim was taken to her mother who reported the incident to Police. The convict was arrested, tried and sentenced to 24 years. - Having been granted leave under Section 132 (1) (b) of the trial on 25 indictment Act, Cap 23 and Rule 43 (3) (a) of the rules of this Court The Appellant lodged the present appeal for the court to consider the following ground of appeal:-

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## **Ground of Appeal**

The learned trial Judge erred in law and fact when he failed to offset the period spent on remand by the appellant thereby passing an illegal sentence occasioning a miscarriage of justice.

### Representation.

$\mathsf{S}$

$10$

Mr. Joseph Kyomuhendo – Chief State Attorney together with Ms. Florence Kataike-State Attorney appeared for the Respondent while Mr. Muhammad Mbalire appeared for the Appellant on state brief.

## Submissions.

It was submitted for the Appellant that the failure by the trial Judge to deduct the period spent by the Appellant on remand makes the sentence imposed illegal. It was argued that the Appellant was arrested on 5<sup>th</sup> January 2013 and convicted on 13<sup>th</sup> May 2014 but the period he was on remand was not taken into account by the trial court while imposing the 24 year's sentence.

Counsel for the Appellant cited the cases of **Rwabugande Moses V** Uganda. Criminal Appeal No.25 of 2014 and Kajooba Vescensia V Uganda. **Criminal Appeal No.0118 of 2014** which provide for consideration by the 20 court of the time spent on remand by an accused before arriving at the sentence to be imposed by a trial court.

For the Respondent it was submitted that the trial court has the discretion to determine the sentence which should only be interfered with where the sentence imposed is manifestly excessive or so low as to amount to a $25$ miscarriage of justice. The sentence imposed can also be interfered with where the trial court ignored important matters or circumstances or where the sentence imposed is wrong in principle.

The cases of Kiwalabye Bernard V Uganda. Criminal Appeal No.143 of 2001 and Biryomumaisho Alex V Uganda. Criminal Appeal No.464 of 2016 30 were referenced for the proposition.

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It was argued that the trial Judge imposed the sentence on 13<sup>th</sup> May 2013 when the sentencing regime at the time only required the court to take into account the time spent on remand.

The court guided on the arithmetic computation of the remand period before its deduction from the sentence on 3<sup>rd</sup> March 2017 in the Supreme $\mathsf{S}$ Court decision in the case of Rwabugande Moses V Uganda. Criminal Appeal No.25 of 2014.

Counsel for the Respondent relied on Kizito Senkula V Uganda. SC criminal Appeal No.24 of 2001 and Abelle Asuman V Uganda. SC Criminal Appeal **No.66 of 2016** to support the submission and urged the court to dismiss $10$ the appeal since the remand period was taken into account as required by the sentencing regime at the time.

## Consideration.

We have considered the submissions of Counsel and reviewed the trial proceedings. The trial Judge during the sentencing hearing considered the $15$ aggravating and mitigating factors preceding the sentencing at length in the passage reproduced below:-

"There is no criminal record regarding the accused. He has been on remand for 1 year, 3 months and 2 days. He is 38 years old and claims that he is remorseful. He prayed for a lenient sentence. The offence which he 20 was convicted has become rampant in the community and the conduct violated the bodily integrity and decency of the victim who is not only a child in need of protection from him but is also a vulnerable child being mentally handicapped. In view of the above, court sentences him to 24 years in jail." 25

It is evident from the passage that the time the convict spent on remand was considered by the court while imposing the sentence in compliance with the mandatory requirement of **Article 23 (8)** of the Constitution of the Republic of Uganda.

At the time the sentence was imposed on 13<sup>th</sup> May 2014, it was sufficient 30 for the trial courts to consider the remand period and not necessarily


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compute it arithmetically. This position was established by the supreme court in **Kizito Senkula V Uganda (supra)** when it was held that :

"As we understand the provision of Article 23(8) of the Constitution, they mean that when a trial court imposes a term of imprisonment as a 5 sentence on a convicted person, the court should take into account the period which the person spent on remand prior to his/her conviction. Taking into account does not mean an arithmetical exercise....."

It was later on 3<sup>rd</sup> March 2017 in the **Rwabugande Moses V Uganda** decision when the Court held that:

"It is our view that the taking into account of the period spent on remand $10$ by a court is necessarily arithmetical, this is because the period is known with certainty and precision; consideration of the remand period should therefore necessarily mean reducing or subtracting that period from the final sentence. That period spent in lawful custody prior to the trial must 15 be specifically credited to an accused."

The trial Judge in the instant appeal computed and considered the remand period before imposing the sentence as required by the law at the time. She cannot be faulted for not arithmetically deducting it from the imposed sentence. We find no merit in the appeal which is accordingly 20 dismissed.

Dated at Masaka this ....................................

Hon. Lady Justice Hellen Obura

**Justice of Appeal** 25

> Hon. Justice Muzamiru Mutangula Kibeedi **Justice of Appeal**

Hon, Justice Moses Kazibwe Kawumi **Justice of Appeal**

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