Komakech v Uganda (Criminal Appeal 540 of 2014) [2025] UGCA 33 (13 February 2025)

## THE REPUBLIC OF UGANDA

# IN THE COURT OF APPEAL OF UGANDA HOLDEN AT GULU

[Coram : Egonda-Ntende, Tibulya, Kazibwe, JJAJ

## CRIMINAL APPEAL NO. O54O OF 2014

(Arisingfrom High Court Criminal Session Case No. 164 of 2012 at Gulu)

### BETWEEN

KOMAKECH CHARLES APPELLANT

## AND

UGANDA RESPONDENT

lAn appeal from a Judgment of the High Court of IJganda sitting Keitirima, J.), delivered on the l4th day ofNovember, 20131

### JUDGMENT OF THE COURT

#### Introduction

- tll On the 14th day of November, 2013, the appellant was convicted by the High Court upon his own plea of guilty of the offence of aggravated defilement, contrary to Section 116 (3) and (4) of the penal Code Act, Cap. <sup>I</sup>28. The particulars of the offence were that the appellant on the 1 7th September 202,he performed a sexual act with AJ, a girl 13 years old. He was sentenced on the 2 lst day of November, 20 1 3 to serve 20 (twenty) years' imprisonment. At the commencement of the hearing, the appellant successfully sought leave of this court to appeal only against the sentence. - l2l The brief facts of this appeal are that the appellant, a pastor at Polomanyen Church and the victim, (A J), aged l3 years) were village mates. The victim who at the time lived with her parents also attended the appellant,s church. On the 1 7th day of September 2012, the appellant met the victim at the church and offered to take her to his house to pray for her. The victim accepted and when they reached his house, the appellant tumed her into his wife and repeatedly performed sexual intercourse with her. - t3] Upon learning that the victim's parents and the local authorities were looking for them, the appellant escaped and ran with the victim up to Gulu from where he continued to sexually assault her until the month of October, 2012, when they were found in Gulu town. The appellant was subsequently arrested and charged with a single of act of aggravated

defilement on the lTth September 2012. The appellant confessed in his charge and cautioned statement to having committed the said offence. Upon medical examination, the victim was found to be 13 years old, sexually penetrated and with a ruptured hymen. The appellant was medically examined and found to be ofthe apparent age of28 years and mentally sound.

## Sentence of the trial Court

t4l The trial Judge's sentence was concisely stated as follows;

'The convict pleaded guilty and hence did not waste court's time. However, the actions of the convict were heinous to say the least. As a pastor, he should have been expected to inculcate morals to his congregation but instead he used his influence and position to lure a young girl for his sexual satisfaction. One wonders how many young girls fell prey to the convict's actions. I will therefore sentence the convict to 20 years in prison. I have considered the duration the convict has been on remand and the avoidance ofdoubt. The duration of the sentence begins to run from the date hereof.'

t5l The 2O-year sentence meted out by the trial Court left the appellant aggrieved, hence this appeal.

## Ground of appeal

t6l Ms. Akello Alice Latigo, Counsel for the appellant formulated a singular ground of appeal, as follows;

> 'That the leamed trial Judge erred in law when he lailed to take in to account the period the appellant spent on remand in determining the sentence and imposed a manifestly harsh and excessive in the circumstance.'

## Representation and Submissions of Counsel

- 171 At the hearing, Ms. Akello Alice Latigo appeared for the appellant while the respondent was represented by Ms Ainebyoona Happiness, Chief State Attomey in the Office of the Director, Public Prosecutions' - [8] In her written submissions,, the appellant's leamed counsel while relying on the case of Rwabu de Moses v Us.andal20l7l UGSC 8, submitted that the trial judge should have deducted the period the appellant spent on pre- trial period on remand from the 12th October, 2012 to 21st November, 20t3.

- t9l She further submitted that the appellant was 28 years old at the time of commission of the offence and Court should have considered his age and handed him a reformatory sentence as opposed to the 20 years which would waste all his life since he would be freed at the age of 48 years. She prayed that the sentence should be quashed and substituted with a 12 years' imprisonment. - [10] Ms. Ainebyoona Happiness, Chief State Attorney appeared for the respondent. She submitted that trial judge passed an appropriate sentence since the appellant was not given the maximum sentence provided by law. She further stated that the trial court also took into account the period that the appellant had spent on remand. She invited Court to find that a sentence of 20 years' imprisonment for defilement of a 13 -year-old victim by the appellant who was her Pastor was neither harsh nor manifestly excessive.

### Analysis

<sup>I</sup>I 1] Appellate jurisdiction regarding sentencing has been exhaustively dealt with by courts in a litany of decisions cited in the submissions of counsel. In Kiwalabve Bemard v Ueanda. Suoreme Court Criminal Aooeal No. 143 of 2001. (unreported) the Supreme Court stated in part as follows:

> 'An appellate court will only alter a sentence imposed by the trial court if it is evident it acted on a wrong principle or overlooked some material factor, or if the sentence is manifestly excessive in view ofthe circumstances ofthe case. Sentences imposed in previous cases of similar nature, while not being precedents, do afford material for consideration"

- [12] We shall follow the same in the resolution of this appeal. - <sup>I</sup>l3] Counsel for the appellant contended that the leamed trial Judge did not comply with article 23(8) of the Constitution of Uganda. Article 23 (8) provides that,

'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.'

[ 1a] The above-cited provision gives a mandatory directive to the trial court to take into account the period of pre-trial detention in the determination of the sentence of imprisonment. Obviously as contended by counsel for the

respondent the trial court could not have applied Rwabugande Moses v Uganda (supra), as this case was decided prior to the decision of the Supreme Court of Rwabugande. Neither were the Constitution (Sentencing Guidelines for Courts of Judicature) (Practice) Directions, 2013, in force at the time of sentencing the appellant in the court below.

- [15] In the instant case, the trial Judge in his sentencing notes stated that he had considered the period that the appellant had spent on remand. This statement by itself is not sufficient. The trial Judge should demonstrate that he or she has ascertained the period that was spent on remand by the convict and then be able to consider or take the same into account. Simply stating that it had been considered without demonstrating that it has been ascertained, this court, or any other person reading the sentencing notes, would not know what period was taken into account, as there was no evidence that it had been ascedained. See Kabwiso Issa v Ugandal2!831 UGSC 36. - [16] In the result we are satisfied that the learned trial judge did not comply with article 23 (8) of the Constitution. This renders this sentence illegal and we hereby set it aside. - [17] Secondly the leamed trial judge did not consider the fact that the appellant was a first offender which is a valid mitigating factor that a sentencing court is obliged to consider while arriving at the appropriate sentence. The failure to take this factor into account may well explain or have contributed to what appears to be an inordinately lengthy, severe, and harsh sentence. For that reason alone, it would have obliged us to interfere with the sentence as the leamed.iudge failed to consider a factor that ought to have been considered in arriving at the sentence to be imposed upon the appellant. - [18] Since the appeal before us is not yet finally resolved in determining a fresh sentence we are satisf,ted that it is proper to apply the Rwabugande Rule, as we exercise our powers of sentencing the appellant afresh, pursuant to section 1 1 of the Judicature Act. See Namwendi Mutwalibi v Ueanda GCA 82 & Attorney General v Kieula and 4 17 Others 2009 U c6. - [19] The appellant pleaded guilty and saved the court's time which is evidence of remorsefulness. The appellant was a first offender with no previous record. The appellant was fairly a youthful offender at 28 years ofage. He had the capacity to reform and become a useful member of society. The

aggravating factors included abuse of his position as religious leader in the community by acting contrary to the biblical doctrines and the trust placed in him by the victim who was a member of his congregation. He committed a capital offence whose maximum punishment was the death penalty.

- [20] It is trite practice that in addition to the mitigating and aggravating factors, there is a necessity for courts to maintain consistency and uniformity in sentencing, taking into account the circumstances under which the offences are committed. See Opio Francis v Uganda, [2020] UGCA 25. - [21] In Turyayomwe Moses v Uganda, Court of Appeal Criminal Appeal No. 20 of 2013, (unreported), the appellant was convicted of aggravated defilement and sentenced to 15 years' imprisonment by the trial court. This Court upheld the sentence of 15 years' imprisonment as appropriate in the circumstances of the case. It only deducted the period the appellant had spent on remand and let the appellant serve a sentence of 13 years and 17 days' imprisonment. - [22] In Birungi Moses v Uganda, [2014] UGCA 51 the accused was convicted of aggravated defilement and sentenced to 30 years' imprisonment. This Court reduced the sentence of 30 years' imprisonment to 12 years' imprisonment where the appellant was a first offender and had spent 3 years on remand prior to his conviction. - [23] In Kabwiso Issa v Uganda (supra) the Supreme Court reduced a sentence of 15 years' imprisonment for the offence of defilement to 10 years imprisonment where the courts below had not taken into account the period the appellant had spent in pre-trial detention.

## Decision

[24] Pursuant to section 11 of the Judicature Act and taking into account all the factors in the instant appeal as set out above, we are satisfied that the appropriate sentence in this regard is 12 years' imprisonment. The period of 1 year and 1 month that the appellant had spent on remand shall be deducted from the 12 years. The appellant will serve a term of 10 years and 11 months from the date of conviction, 14th November 2013.

Signed, dated and delivered at Gulu this B day of

2025.

Predrick Egorda-Ntende

Justice of Appeal $\ell$

> $\n *Top*\n$ Margaret Tibulya<br>**Justice of Appeal**

**T**

Moses Kazibwe Kawumi **Justice of Appeal**