Kisekka v Uganda (Criminal Appeal 541 of 2016) [2024] UGCA 179 (16 July 2024)

## THE REPUBLIC OF UGANDA IN THE COURT OF APPEAL OF UGANDA AT MASAKA CRIMINAL APPEAL NO. 0541 OF 2016

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

::APPELLANT KISEKKA JIMMY ::::::::::

## **VERSUS**

## **\*\*\*\*\*\*\*\*\*\*\*\*\*\*\*\*\*\*\*\*\*\*\*\*\*\*\*\*\*\*\*\*\*\*\*\*\*** UGANDA::::::::::::::::::::::::::::

(An appeal from the decision of the High Court at Masaka before Hon. Justice Dr. Flavian Zeija (as he then was) dated 22<sup>nd</sup> December 2016 in Criminal Session Case No. 128 of 2013)

JUDGMENT OF THE COURT

This is an appeal arising from the decision of the High Court (Zeija, J) (as he then was) at Masaka in which the appellant was indicted, tried and convicted of the offence of murder contrary to sections 188 & 189 of the Penal Code Act and sentenced to life imprisonment.

The brief background to this appeal, as ascertained from the court record, is that the Appellant, on the night of 6th October 2008, while at Nsimbo village in Rakai District, murdered Kanyarnpola Zekeri (the deceased). He was consequently arrested, tried, convicted, and sentenced as aforementioned.

Being dissatisfied with the sentence, the appellant has appealed to this Court. He first filed a Memorandum of Appeal on 5<sup>th</sup> November 2020 in an appeal against both conviction and sentence and the 3 grounds of appeal were set out as follows: -

"1. THAT the Learned Trial Judge erred in law when he failed to sufficiently evaluate all the evidence adduced during trial and occasioned miscarriage of justice.

2. THAT the Learned Trial Judge erred in law in failing to take into account the period the appellant $\frac{1}{2}$ spent on remand that rendered the sentence illegal, harsh and manifestly excessive.

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3. THAT the Learned Trial Judge erred in law and fact in sentencing the appellant to a manifestly harsh and excessive sentence in the circumstances of the case."

When this matter was cause-listed in this session, the appellant again filed another Memorandum of Appeal with one ground on sentence only that the learned trial Judge erred in law and fact when he imposed a manifestly harsh and excessive sentence of life imprisonment on him without considering the circumstances under which the offence was committed thereby occasioning a miscarriage of justice.

At the hearing of this appeal, Mr. Mbalire Muhammed represented the appellant on State Brief while Ms. Ainebyona Happiness, a Chief State Attorney from the Office of the Director Public Prosecutions represented the respondent.

- Counsel for the appellant submitted that the appellant was poorly represented at the trial 15 which violated his right to a fair hearing. He argued that due to this, he did not present his mitigating factors which resulted in the sentencing court arriving at an inappropriate sentence. Counsel pointed out that there were factors that existed throughout the hearing which would have warranted a more lenient sentence, namely that; the appellant killed the deceased under the heat of passion and influence of alcohol, the appellant was poorly represented which 20 prompted him to raise an unsustainable defense of alibi instead of bargaining to plead guilty for manslaughter, no mitigating factors were submitted for him, his lawyer did not make a submission on a no case to answer and lastly that court did not inquire into the appellant's mental capacity at the time he committed the offence. - Counsel implored this Court to set aside the sentence of life imprisonment and under section 25 11 of the Judicature Act, impose a more lenient sentence while taking into consideration the mitigating factors which were that; the appellant was a first offender; he was at his youthful age of 24 years at the time of committing the offence; he is capable of reforming; he pleaded for leniency and has been on remand for a period of 3 years, 9 months and 18 days. Counsel also urged this Court to consider uniformity of sentence and he referred to the cases of 30

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Aharikundira Yusitina vs Uganda, SCCA No. 27 of 2015; Suzan Kigula vs Uganda HCT- $\mathsf{S}$ 00 CR-SC-0115 (in mitigation); Jackline Uwera Nsenga vs Uganda, CACA No. 312 of 2013; Uganda vs Lydia Draru Alias Atim HCT- 00-CR-SC-0404 of 2010; Godi Akbar Hussein vs Uganda, SCCA No. 3 of 2013; Mbunya Godfrey vs Uganda, Supreme Court Criminal Appeal No. 04 of 2011; and Atukwasa Jonan & 6 others vs Uganda, CACA No. 168 of 2018. 10

Counsel proposed a sentence of 20 years' imprisonment from which the period spent on remand should be deducted arithmetically as per the decision of Rwabuganda Moses vs Uganda, SCCA No. 24 of 2014.

In response, counsel for the respondent raised a preliminary objection that the appellant's sole ground of appeal against sentence only offends rule 66 of the Rules of this Court in that 15 it is argumentative, a narrative, not concise and not specific on the exact point of law or fact that the appellant contends were wrongly applied by the learned trial Judge. She prayed that this Court rely on the case of Sseremba Dennis vs Uganda, Criminal Appeal No. 480 of 2017 to strike out for those reasons.

Without prejudice to the foregoing, counsel submitted on the merits of this appeal and urged $20$ this Court to reject the appellant's contention of poor representation during the trial and find the sentence of life imprisonment appropriate in the circumstances. She submitted that it is a well settled principle that sentence is a discretion of a trial court and an appellate court will only interfere with a sentence imposed by the trial court if it's evident that it was illegal or harsh and manifestly excessive or so low as to amount to an injustice. She referred to 25 Kyalimpa Edward vs Uganda, SCCA No. 10 of 1995.

Counsel also invited this Court to find that the appellant's right to a fair hearing was not violated because the appellant was allocated a lawyer on State Brief as required by Article 28 (3) (e) of the Constitution. She contended that the appellant was well represented


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throughout the trial, all prosecution witnesses were cross examined and he ably defended $\mathsf{S}$ himself under the guidance of his lawyer. Counsel argued that the appellant cited circumstances that led him to commit this offence and largely faults his lawyer who represented him at the trial but he does not contest the fact that he was properly convicted. Counsel invited this Court to find that no miscarriage of justice was occasioned to the appellant by the nature of legal representation accorded him and so there was no violation of 10 Regulation 12 of the Advocates (Professional Conduct) Regulations S I 267-2.

In regard to the appellant's advocate opting not to make a submission of no case to answer. counsel submitted that an accused is convicted on the basis of the evidence adduced before court and not basing on submissions made to the trial court, she added that such submissions are only convincing but not binding on the trial Judge. She prayed that this Court finds that counsel for the appellant's failure to submit on a no case to answer did not amount to an improper legal representation.

Regarding the argument that court ought to have investigated the mental capacity of the appellant at the time he committed the offence, counsel submitted that the mental condition of the appellant was not in issue at the trial since the appellant was examined immediately after the commission of the offence and was found to be mentally sound.

On severity of sentence, counsel implored this Court to uphold the sentence imposed on the appellant as it was not excessive. According to counsel, the learned trial Judge was lenient and spared the appellant the death penalty considering the brutal manner in which he committed the offence. She argued that the sentence of life imprisonment is appropriate and in line with sentences imposed in cases of a similar nature. She referred to **Budebo Kasto** vs Uganda, CACA 0094 of 2009, Bukenya vs Uganda, CACA 51 of 2007 and Opendi **Michael & Anor vs Uganda, CACA 211 of 2011.** In conclusion, counsel prayed this Court to find no merit in this appeal and uphold both the conviction and sentence imposed on the

appellant 30

We have carefully studied the Court record and considered the submissions of both counsel $5$ as well as the law and authorities cited to us plus those not cited but which are relevant to the issues under consideration. We are alive to the duty of this Court as a first appellate court to review the evidence on record and reconsider the materials before the trial Judge, and make up its own mind not disregarding the judgment appealed from but carefully weighing and considering it. See **Rule 30(1)** (a) of the Judicature (Court of Appeal Rules) Directions, 10 $S. I$ 13-10.

There is only one ground on sentence upon which this appeal is premised and this Court is required to consider whether the learned trial Judge erred in law and fact when he imposed a manifestly harsh and excessive sentence of life imprisonment on the appellant without considering the circumstances under which the offence was committed thereby occasioning a miscarriage of justice.

We will first deal with the contention that the sole ground of appeal offends rule 66 of the Rules of this Court. We agree that this ground of appeal was poorly framed by importing what should have been in the arguments into the ground. Be that as it may, in the interest of justice, we will not strike it out. We caution counsel to acquaint himself with rule 66 so as to avoid making a similar mistake in future.

We are alive to the fact that this Court can only interfere with the sentence imposed by the trial Court if the sentence imposed is manifestly excessive or so low as to amount to a miscarriage of justice or where a trial Court ignores to consider an important matter or circumstance which ought to be considered while passing the sentence or where the sentence imposed is wrong in principle. **See: Kyalimpa Edward vs Uganda** (supra)

We note that during the sentencing proceedings prosecution presented the aggravating factors and the defence counsel simply stated: - "We pray that this court passes a lenient" sentence." In consideration of what had been presented, the learned trial Judge proceeded

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- to sentence the appellant to life imprisonment which is a lesser sentence than the maximum $5$ penalty of death. We accept the appellant's contention that his counsel at the trial failed to present the factors that would have mitigated his sentence. However, that cannot be blamed on the learned trial Judge. We use this opportunity to appeal to lawyers who take instructions under State Brief to take the assignment seriously and represent the clients they take on well. - We accept counsel for the respondent's argument that the appellant cited circumstances that 10 led him to commit this offence and largely faults his lawyer who represented him at the trial but he does not contest the fact that he was properly convicted. We also agree with counsel for the respondent's submission that an accused is convicted on the basis of the evidence adduced before court and not on submissions made to the trial court. She added that such submissions are only convincing but not binding on the trial Judge and we also agree. We 15 therefore find no merit in the appellant's argument.

In regard to the sentence being manifestly harsh and excessive, it should be noted that murder is a very grave offence whose maximum punishment is death and given the circumstances of this case, the appellant killed his father in a gruesome manner. Despite those circumstances, the learned trial Judge exercised his discretion and spared the appellant the death sentence and he instead sentenced him to life imprisonment. In Okello Geoffrey vs Uganda, SCCA No. 34 of 2014 the Supreme Court found that in terms of severity of punishment in our penal laws, a sentence of life imprisonment comes next to the death sentence which is still enforceable under our penal laws.

We shall take into consideration cases of a similar nature to determine whether the sentence. 25 of life imprisonment is manifestly harsh and excessive as contended by counsel for the appellant. $VV$


In Ssekawoya Blasio vs Uganda, SCCA No. 24 of 2014, this Court and the Supreme Court $5$ upheld a sentence of life imprisonment which had been imposed on the appellant by the trial court for the offence of murder.

In Obote William vs Uganda, SCCA No. 12 of 2014 the Supreme Court upheld a sentence of life imprisonment for the offence of murder.

In Sebuliba Siraji vs Uganda, CACA No 575 of 2005 this Court upheld a sentence of life 10 imprisonment imposed on the appellant who murdered the deceased with a panga.

In the circumstances of this case and in light of the range of sentences for murder in the above-cited cases and others we have not cited here, we find that the sentence imposed upon the appellant was within the range of sentences in cases of a similar nature, and as such, we do not find it manifestly harsh and excessive, as counsel for the appellant contended.

In the premises, we do not find merit in this appeal and we accordingly dismiss it.

We so order.

Dated at Masaka this 16<sup>th</sup> day of July 2024

Hellen Obura ikee Q.<br>1/2024 JUSTICE OF APPEAL

> Muzamiru M. Kibeedi JUSTICE OF APPEAL


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Moses K. Kazibwe JUSTICE OF APPEAL