Kulaishi v Uganda (Criminal Appeal 187 of 2024) [2024] UGCA 181 (17 July 2024)

## THE REPUBLIC OF UGANDA

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

### CRIMINAL APPEAL NO.0187 OF 2024

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

**KULAISHI WAMALA**

**APPELLANT**

#### **VERSUS**

#### **UGANDA**

$\overline{c}$

$\mathsf{S}$

#### **RESPONDENT**

#### (Appeal from the decision of Justice Keitirima at Masaka delivered on $10$ 31<sup>st</sup> March 2017 in Criminal Session Case No.37 of 2016)

#### JUDGMENT OF THE COURT

The Appellant was indicted for Rape contrary to sections 123 and 124 of the Penal Code Act and sentenced to 13 years and 8 months. He was also in the same charge sheet indicted for Aggravated Robbery contrary to sections 285 and 286(2) of the Penal Code Act and was sentenced to 13 years and 8 months. The Trial Court ordered that the two sentences were to run consecutively.

## Background.

On $1^{st}$ October 2015 the victim (*referred to as NT*) left her home for the 20 garden at about 6.18 am. She was attacked by the Appellant who held a knife. The victim was dragged by the Appellant to a bush, he raped her and robbed her phone before fleeing from the scene. The victim's daughter joined her at 7.30 am and a report of the incident was made to Police. 25

The Appellant was arrested after the victim's phone was tracked and it was found with him. He was identified by the victim at an identification


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parade conducted at the Police station and was thereafter charged, tried and subsequently convicted of the two offences.

The appeal is premised on one ground.

## Ground of Appeal.

1. The trial Judge erred in law and in fact when he sentenced the $\mathsf{S}$ appellant to a cumulative sentence of 30 years' imprisonment for the offences of Rape and Aggravated Robbery which sentence was manifestly harsh and excessive in the circumstances thereby occasioning a miscarriage of justice.

#### Representation. $10$

Ms. Brender Ainomugisha appeared for the Appellant on state brief while Ms. Immaculate Angutoko, Chief State Attorney appeared for the Respondent.

Counsel for the Appellant sought the leave of court to validate the Notice of Appeal and to be allowed to appeal against the sole ground concerning the sentence imposed by the court.

Leave was granted by the court as there was no objection by the respondent. The submissions filed by both parties were adopted for the determination of the Appeal.

#### Submissions. 20

It was argued by Counsel for the Appellant that any trial court enjoys the discretion to determine an appropriate sentence and the law empowers the court to order for sentences to run consecutively. Counsel cited Sections $2(2)$ and $2(3)$ of the Trials on Indictments Act to support the submission.

$25$

It was noted by Counsel for the Appellant that he was a repeat offender having been convicted and sentenced for Aggravated defilement a few days prior to the impugned sentence in this appeal.

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It was however argued that the trial Judge did not consider the fact that the Appellant was a young offender of 18 years at the time the offences were committed and only considered the fact that the Appellant had pleaded guilty to the charges.

- s Counsel relied on the case of Kabatera Stephen V Uganda. Criminal Appeal No.123 of 2001 for the proposition that the age of an accused person is always a material fact that ought to be taken into account before the sentence is imposed and that failure to consider the age of the accused caused a failure ofjustice. - l0 The court was referred to the case of Kalibobo Jackson V Uganda. Criminal Appeal No.45 of 2001 where a 25 year old accused who raped <sup>a</sup> 70 year old woman was sentenced to 17 years but it was reduced to <sup>7</sup> years on appeal.

Counsel further referred to Naturinda Thompson V Uganda. SC Criminal

rs Appeal No.25 of 2015 where an accused was sentenced to 10 years for Rape,16 years for Aggravated Robbery and 13 years for Aggravated defilement with all the sentences to run concurrently.

The court was urged to set aside the consecutive sentences imposed by the trial court and substitute them with a shorter custodialterm.

- 20 Counsel for the Respondent vehemently opposed the Appeal contending that the trial court had the discretion to order for the sentences to run consecutively as provided for in sections 2(2) and 2(3) of the Trial on lndictments Act and the trial Judge cannot be faulted for exercising his discretion within the law. - 25 lt was argued that the Appellant was admittedly a repeat offender who had in the same criminal court session been sentenced by the same court on a charge of Aggravated defilement which aggravating factor was noted by the trial Judge together with the age of the victim who was 63 years old while the Appellant was 18 years old at the time the offence was .lo committed.


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The court was referred to the case of Mubangizi Alex V Uganda. SCCA No.07 of 2015 in which the court among other factors considered the advanced age of a rape victim and the humiliation she was subjected to before upholding a 30 years'sentence noting that it was a borderline case : which could have attracted Life imprisonment.

Counsel further referenced Anguyo George V Uganda. CACA No.0044 of 2014 where the court upheld a 40 years'sentence in a Rape case. The court was urged to dismiss the appeal since the trial Judge acted within the Law and the attendant discretion in ordering for the sentences to run to consecutively.

## Consideration by the court.

As a general rule, where a person is convicted of more than one offence at one trial, the sentences for each offence are supposed to run consecutively unless the court in its absolute discretion orders otherwise. t5 Concurrent sentences are thus discretionary as an exception to the above general rule. This is by virtue of sections 2(2) and L22(l) of the Trial on lndictments Act, Cap. 23 of the 2000 Revised edition.

Section 2 of the TIA provides:

"Sentencing Powers of the High Court

- zo (l) The High Court moy poss ony lowful sentence combining ony of the sentences which it is authorised by low to poss. - (2) When o person is convicted ot one triol of two or more distinct offences, the High Court may sentence him or her for those offences to the severol punishments prescribed for them which 7s the court is competent to impose, those punishments, when consisting of imprisonment, to commence the one ofter the expirotion of the other, in such order os the court may direct, unless the court directs thot the punishments sholl run concurrently.

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- (3) For the purposes of oppeal, the aggregote of consecutive sentences imposed under this section, in the cose of convictions for severol offences ot one triol, sholl be deemed to be a single sentence." - s On the other hand, Section 1,22(L) of the TIA provides:

# "Sentences cumulative unless otherwise ordered

<sup>r</sup>) Where o person ofter conviction for an offence is convicted of onother offence, either before sentence is possed upon him or her under the first conviction or before the expiration of that sentence, ony sentence of imprisonment which is possed upon him or her under the subsequent conviction sholl be executed ofter the expirotion of the former sentence, unless the court directs that it shall be executed concurrently with the former sentence or of ony port of it; but it shall not be lawful for the court to direct thot o sentence of imprisonment in default of payment of o fine sholl be executed concurrently with o former sentence under section 170(c)(i) or ony port of it."

The trial Judge while imposing the sentence noted that the Appellant was a repeat offender who had raped the victim who was fit to be hls 20 grandmother and also robbed her phone set.

The maximum sentence for the two offences the Appellant was convicted of is death and imposing a sentence of 15 years before deductingthe time spent on remand on each court was withln the Law and discretion of the 25 court.

ln Bakubye Muzamiru & Another V Uganda. SC Criminal Appeal No.56 of 2015, the Court while discussing the issue of Life imprisonm observed:- .xo)

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"We ore ol the view that sentences of more than 20 yeors' imprisonment for copitol sentences cannot be soid to be illegol because they ore less thqn the maximum sentence which is deoth. Courts hove powers to poss appropriote sentences qs long as they do not exceed the moximum 5 sentences provided by the low."

We also find it imperative to note that circumstances surrounding the commission of offences and the nature of injury inflicted on the victims cannot be the same. A trial Judge who observed the victims would be better placed to determine the appropriate sentence which this court r0 would not casually interfere with save for known reasons grounded in the law.

We find the holding of the court in Arihakundira Yustina V Uganda. SC Criminal Appeal No.27 of 2015 relevant to the present appeal. lt was held as follows:

rs "There is a high threshold to be met for an appellate court to intervene with the sentence handed down by a trial Judge on grounds of it being manifestly excessive. Sentencing is not a mechanical process but <sup>a</sup> matter of judicial discretion therefore perfect uniformity is hardly possible. The key word is "manifestly excessive'. An appellate court will 20 only intervene where the sentence imposed exceeds the permissible

range or sentence variation."

Having considered the aggravating and mitigating factors including the Appellant's age, we find that the aggravating factors outweigh the mitigating factors including the Appellant's age. As such we do not find

2s reason to interfere with the trial Judge's sentencing discretion purely on account of the Appellant's age and basing on the circumstances in which the offences were committed. ,/

Sowedi abdul alias Obong Lawrence versus Uganda SC. Criminal Appeal No. 04 ol2Ot7


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We find no merit in the appeal which we accordingly dismiss. Dated at Masaka this ....................................

Hellen Obura $\mathsf{S}$

**Justice of Appeal**

Muzamiru Mutangula Kibeedi

**Justice of Appeal** $10$

Moses Kazibwe Kawumi **Justice of Appeal**

$15$

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