Kiyemba and Others v Uganda (Criminal Appeal No. 69 of 2017) [2023] UGCA 391 (1 July 2023)

#### THE REPUBLIC OF UGANDA

### IN THE COURT OF APPEAL OF UGANDA HOLDEN AT MASAKA

#### CRIMINAL APPEAL NO.69 OF 2OL7

(Coram: R. Buteera, DCJ; C. Bamugemereire & E. Luswata, JJA)

1. KIYEMBA ROBERT

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- 2. TUMWESIGYE PATRICK APPELLANTS - 3. TUKWASIBWE KYETA

#### VERSUS

UGANDA RESPONDENT

(Appeal against the decision of John Eudes Keitirima, J, in Criminal Session Case No. 208 of 2013 dated 30'h June 2016 at Masaka High Court)

### IUDGMENT OF THE COURT

The appellants were convicted of the offence aggravated robbery contrary to Sections 285 & 286 (2) of the Penal Code Act, Cap 1-2O, and sentenced to 30 years' imprisonment.

#### Background

It was the prosecution case that the appellants, on the 20'h day of September 2013 at around midnight, at Bwenyegye village in Rakai District, armed with a knife and sticks robbed the victims of various items. Bainomugisha Eriab was robbed of his mobile phone, Kaheesi Vincent was robbed of UGX 200,0001= and Kebikari Beatrice was robbed of UGX 300,000/= ord immediately before the robbery, the appellants had a knife and stick which they used to hit the victims. The appellants


were identified by a one Tubingana Jennifer who saw them with the help of light from the torches and they were familiar to her since they were residents in the area. The appellants were arrested and charged on three counts of aggravated robbery. They were acquitted on count <sup>2</sup> for lack of sufficient evidence but were convicted on counts 1 and <sup>3</sup> and sentenced to 30 years' imprisonment each.

Being dissatisfied with the sentence, the appellants sought leave of this court under section I32 (1) (b) of the Trial on Indictments Act, to appeal against the sentence only in a single ground of appeal as follows:

The learned trial Judge erred in law and fact when he sentenced the appellants to 30 years' which sentence was harsh and manifestly excessive in the circumstances.

### Representation

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At the hearing of the appeal, the appellant was represented by Ms Nansubuga Margaret, oD state brief, while the respondent was represented by Mr. Ssemalemba Simon Peter, Assistant DPP, from the Office of the Director of Public Prosecutions.

# Case for the appellants

Counsel for the appellants submitted that the appellants at the trial court presented their mitigating factors to wit: they were young men with no criminal record and remorseful but in spite of their imploration, the trial Judge sentenced them to 30 years' imprisonment which was harsh and excessive.

Counsel contended that judicial pronouncements have established that in sentencing there is a need to maintain consistency or uniformity of similar sentences. She referenced Bunya Godfrey v Uganda; SCCA No. 4 of ZOLL, to that effect.


Counsel listed various cases in proposition to the principle of consistency in cases involving Aggravated Robbery. She cited Kusemererwa & Anor v Uganda; CACA No. 83 of 2010, where a sentence of 20 years' imprisonment was reduced to 13 years' imprisonment. In Okulu Jimmy v Uganda; CACA o. 129 of 2013, where a sentence of 15 years was substituted with one of 10 years. Further in Bukenya Joseph v Uganda; SCCA No. 17 of 2010, where a sentence of life imprisonment was reduced to 20 years' imprisonment.

Counsel prayed that this court considers that the appellants were young persons at the time and deserved a lesser sentence hence she urged the court to reduce the sentence to 15 years' imprisonment to maintain uniformity and consistency.

### The respondent's case

Counsel for the respondent contended that the sentence of 30 years' imprisonment, was neither harsh nor excessive. It was his submission that while sentencing the appellants, the trial Judge took into account both the aggravating and mitigating factors.

Counsel referred to Mutebi Ronald & anor v Uganda; CACA No. 259 of 2019, where this court maintained sentences of 30 years' imprisonment for the offence of Murder and Aggravated Robbery on ground that they were neither harsh nor excessive.

It was counsel's submission that each of the 2 counts of Aggravated Robbery with which the appellants were convicted carry a maximum sentence of death hence the sentence of 30 years was not harsh in the circumstances. He prayed that the appeal be dismissed and the sentence of 30 years' imprisonment meted out on the appellants be upheld.


# Consideration of Court

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We are mindful of the duty of this Court as a first appellate Court. We are alive to the law that requires us to re-appraise the evidence and to come up with our own inferences on all issues of law and facts. (See rule 30(1Xa) of the Rules of this court, Bogere Moses v uganda; sccA No. I of 1997, and Kifamunte Henry v Uganda; SCCA No. 10 of 1997). we have considered the whole of the record that was set before us, the submissions of counsel and the authorities cited and those not cited that are relevant to the appeal in order to reach our decision in the appeal.

This is an appeal against sentence only. The appellants fault the trial Judge for passing a sentence of 30 years' imprisonment, which they consider harsh and excessive.

We note that although this Court has the powers to interfere with <sup>a</sup> sentence imposed by the lower Court, the instances in which it may do so are limited. The limitations have been discussed in a number of authorities of the Supreme Court and this Court. They were well set out by the Supreme court in Kiwalabye Bernard v Uganda; sccA No. 143 of 2001, as follows;

> "The appellate Court is not to interfere with a sentence imposed by a trial court which has exercised its discretion on sentence unless the exercise of the discretion is such that it results in the sentence imposed to be manifestly excessive or so low as to amount to <sup>a</sup> miscarriage of justice or where a trial court ignores to consider an important matter or circumstances which ought to be considered when passing the sentence or where the sentence imposed is wrong in principle."


We have taken the above stated principles in consideration. In the instant appeal, the appellants were convicted of aggravated robbery and sentenced to 30 years' imprisonment.

In Olupot Sharif & Anor v Uganda; CACA No. 0730 of 2014, the appellant was convicted of the offence of aggravated robbery and sentenced to 40 years' imprisonment. On appeal, this court reduced the sentence to 32 years' imprisonment.

In Ojangole Peter v Uganda; SCCA No. 34 of 2017, the Supreme Court found that a sentence of 32 years' imprisonment imposed on a convict of aggravated robbery was a legal and appropriate sentence.

Further, in Guloba Rogers v Uganda; CACA 57 of 2013, this court considered the sentence of 35 years on account of aggravated robbery as appropriate punishment. From that, it deducted the one year and five months that the appellant had spent on remand.

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We are mindful of the above principles of law and have considered earlier decisions of this court and the Supreme Court on sentencing as discussed above. We however note that there can hardly be consistency in the sentences of this court when each case presents its own unique facts that are distinguishable.

In the instant case, we have looked at the trial Judge's sentencing remarks. He noted thus:

> 'I have heard both the aggravating and mittgating factors. The convicts are young and instead of being productive, they just wanted to reap where they didn't sow. They in fact were on the verge of even raping an innocent girl whom they had threatened to kill as well if money was not availed to them. At their age, the convicts are a danger to society and were not even remorseful considering that they denied the


offences to the end. I have considered the period the convicts have spent on remand, I will now sentence Al to thirty years' imprisonment on count one and count 3. I will also sentence A3 to 30 (Thirty years) imprisonment on count I and count 3. The sentences are to run concurrently. The convicts have a right of appeal vs. both the conviction and the sentence with tn a period of 14 days from the date hereof.'

Notably, the appellants herein were charged on 2 counts of aggravated robbery and there was violence involved. The trial Judge considered both aggravating and mitigating factors and equally considered the period that the appellants had spent on remand.

In the absence of any illegality, w€ find the sentence of 30 years' imprisonment as imposed by the trial Judge, neither harsh nor excessive in the circumstances. We find no reason to justify us interfering with the sentence. The sentence is upheld and appeal accordingly dismissed.

We so order

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v Dated at Kampala this 6 .day of rrr. <sup>2023</sup>

<sup>C</sup> Buteera

Deputy <sup>C</sup> Justice

Catherine <sup>B</sup> mereire Jus Appeal

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Eva Jus Appeal