Kiryowa & Another v Uganda (Criminal Appeal 127 of 2016; Criminal Appeal 203 of 2019) [2024] UGCA 170 (16 July 2024)

# THE REPUBLIC OF UGANDA

## IN THE COURT OF APPEAL OF UGANDA AT MASAKA

(Coram: Hellen Obura, Muzamiru Mutangula Kibeedi, Moses Kawumi Kazibwe, JJA)

# CRIMINAL APPEAL Nos. 0127 OF 2016 & 0203 OF 2019

### 1. KIRYOWA JOHN

2. NAKIRYA REGINA:::::::::::::::::::::::::::::::::::: **APPELLANT**

### **VERSUS**

#### UGANDA::::::::::::::::::: **:::::::::::::::RESPONDENT**

[Appeal against sentence only arising from the decision of the High Court of Uganda at Masaka (Hon. Justice Margaret Tibulya) dated 29<sup>th</sup> April 2016 in Criminal Session Case No. HCT-06-CR-SC-0188 of 2013]

### JUDGMENT OF THE COURT

## Introduction

- $[1]$ The appellants were convicted of Murder contrary to sections 188 and 189 of the Penal Code Act, Cap 120 and doing grievous harm contrary to section 219 of the same Act. They were found by the trial Court to have on the 2nd day of July 2013 at Lwoyo village in the Rakai district murdered Joseph Mutebi (deceased) and done grievous harm to his brother, Peter Bbuye. The deceased and his brother were assaulted when they had gone to the appellants' home to rescue the deceased's cows which had been confiscated by the appellants who are son and mother, respectively. The deceased died 4 days later from the injuries sustained from the said altercation. - $[2]$ The Appellants were accordingly sentenced to 25 years' imprisonment for the offence of murder, after taking into account the remand period, and 3 years' imprisonment for the offence of doing grievous harm. The sentences run consecutively.



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# The Appeal

$[3]$ Being dissatisfied with the said decision, the Appellants now appeal against sentence only based on the sole ground of appeal set out in the Supplementary Memorandum of Appeal as follows:

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

# **Representation**

- At the hearing of the appeal, Mr. Muhammed Mbalire, Learned Counsel, appeared for the $[4]$ appellants on State brief, while Ms. Caroline Marion Acio, Learned Chief State Attorney in the Directorate of Public Prosecutions (DPP) and Ms. Sharon Mauritia Nassaazze, Learned State Attorney jointly appeared for the respondent. The appellant was present in Court. - The parties, with leave of the Court, relied on their written submissions as their legal $[5]$ arguments in support of their respective cases.

## **Analysis**

- $11$ The contention by the appellant that the sentence of the trial Court is illegal is based on the failure by the trial Judge to make an arithmetical deduction of the remand period while sentencing the appellant in accordance with the Supreme Court decision in the case of Rwabugande Moses Vs Uganda, Supreme Court Criminal Appeal No. 25 of 2014. - [6] Counsel for the appellant greatly relied on the Court of Appeal decision delivered on 28<sup>th</sup> June, 2022 in Kajooba Vasencia Vs. Uganda, Criminal Appeal No. 0118 of 2014 and Muhumuza Wilson Vs. Uganda, CoA Criminal Appeal No. 285 of 2015 where the Appellant was sentenced on 13<sup>th</sup> August 2015 before the *Rwabugande decision* and the time spent on remand was arithmetically considered on Appeal.

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- $[7]$ Counsel prayed that the sentences imposed on the appellants be found to be illegal for failure to arithmetically deduct the period of 2 years, 8 months and 29 days the Appellants spent on remand. - $[8]$ The respondent disagreed. She submitted that the judgment in the Rwabugande case having been delivered by the Supreme Court of Uganda on 03<sup>rd</sup> March 2017 was not applicable to the instant matter where the impugned sentence was passed by the trial Court on 29<sup>th</sup> April 2016. - $[9]$ The obligation of the court to take into account the remand period while sentencing a convict is set out in Article 23 (8) of the Constitution of the Republic of Uganda, 1995 as follows:

"Where a person is convicted and sentenced to a term of imprisonment for an offence, any period he or she spends in lawful custody in respect of the offence before the completion of his or her trial shall be taken into account in imposing the term of imprisonment."

- $[10]$ Article 23(8) of the Constitution is mandatory and failure to comply with it renders the sentence illegal See: Rwabugande Moses Vs. Uganda, (op cit). - $[11]$ The learned trial Judge's sentencing record states thus:

"I have taken into account all that was said by both the prosecution and the defence." The offences with which the accused persons have been convicted are grave. The accused persons exhibited the highest form of evidence being that they determinedly assaulted the deceased and Bbuye Peter with disastrous results. Their behavior must be condemned to the utmost. An innocent life was lost for no reason at all. I have considered the relatively advanced age of A1 (Nakirya) though it is not an excuse to commit offences, it goes to mitigate the sentence. I have considered the period each has spent on remand and I sentence the accused persons as follows: -

for

1. Each of the accused persons will serve 25 years' imprisonment on count 1' 2. Each of the accused will serve 3 years' imprisonment on count 2.

Sentence to run consecutively Right of appeal explained. Sgd. Hon. Margaret Tibulya Judge

19.5.16" (Emphasis added)

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- $[12]$ The appellant was sentenced on 19<sup>th</sup> May 2016. This was before the decision in **Rwabugande Moses Vs Uganda** (above) was rendered by the Supreme Court about one year later - on 03rd March 2017 clarifying on compliance with Article 23(8) of the Constitution by way of arithmetically deducting the remand period when sentencing a convict. A non-existent authority/decision of the Supreme Court could not be a binding precedent on the trial judge. Neither does the principle of arithmetic deduction of the remand period prescribed by the *Rwabugande case* have a retrospective application. - $[13]$ Indeed, the Supreme Court itself clarified in its subsequent decisions that the principle in the Rwabugande case applied only to sentencing decisions made after March 2017. In Byamukama Herbert Vs Uganda, Supreme Court Criminal Appeal No. 21 of 2017 where the appellant had been convicted in December 2016, the Supreme Court when dealing with the applicability of the *Rwabugande case* to the appeal before it stated thus:

"For a case to be cited as precedent, it ought to have been decided earlier" before the matter at hand. The Rwabugande decision thus does not serve that purpose in the instant appeal."

Similarly, in Nashimolo Paul Kibolo Vs Uganda, Supreme Court Criminal Appeal No. $[14]$ **46 of 2017** the Supreme Court held that:

> the decision (Rwabugande) was delivered on 3<sup>rd</sup> March 2017. In accordance with the principle of precedent, this Court and the Courts below have to follow the position of the law from that date hence forth."

In the premises, we are satisfied from the sentencing order of the trial court that by the trial $[15]$ Judge stating inter alia "I have considered the period each has spent on remand and I sentence the accused persons as follows...", she complied with what was the existing sentencing regime in the context of Article 23(8) of the Constitution as enunciated by the Supreme Court in several decisions rendered before the *Rwabugande case* which include Kizito Senkula Vs. Uganda, Supreme Court Criminal Appeal No. 24 of 2001 *(unreported)*, where the Supreme Court stated as follows:

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

$[16]$ This ground accordingly fails.

#### $[17]$ **DISPOSITION**

- The appeal against sentence is dismissed. 1. - $2.$ The sentences imposed by the High Court are hereby upheld.

We so order.

Dated and delivered at Masaka this 16<sup>th</sup> day of July, 2024.

**HELLEN OBURA Justice of Appeal** MUZAMIRU M A KIBEEDI ΗΤΔΝGU

**Justice of Appeal**

**MOSES KAWUMI KAZIBWE Justice of Appeal**

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