Kuloba & Another v Uganda (Criminal Appeal 29 of 2017) [2019] UGSC 84 (15 November 2019)

# THE REPUBLIC OF UGANDA IN THE SUPREME COURT OF UGANDA AT KAMPALA CRIMINAL APPEAL NO. 29 OF 2017

(CORAM: MWANGUSYA, OPIO-AWERI, BUTEERA, JJSC, NSHIMYE & TUMWESIGYE. AG. JJSC

#### **BETWEEN**

1. KULOBA MAUBE

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2. WATSAKULA ROGERS ....................................

#### AND

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UGANDA RESPONDENT

[Appeal against the judgment of the Court of Appeal, at Mbale Criminal Appeal No. 045 of 2004 delivered on the $11<sup>th</sup>$ May, 2011 by Mpagi-Bahigeine, Kavuma and Arach-Amoko; JJAJ

#### JUDGMENT OF THE COURT

On 29th August, 2001 at about midnight a gang of robbers attacked the home of Deborah Kutosi who testified as PW.1 and Nandutu Kitosi who testified as $PW.2$ . $PW.1$ identified the 1<sup>st</sup> appellant while PW.2 identified the $2<sup>nd</sup>$ appellant among the gang. The assailants demanded for money. They made off with cash and an assortment of household items.

The appellants were tried and convicted by the High Court sitting at Mbale for the offence of Aggravated Robbery contrary to Sections 272 and 273(2) of the Penal Code Act and sentenced to death.

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On appeal to the Court of Appeal they were convicted of Simple Robbery contrary to Sections 272 and 273(1)(b) of the Penal Code Act and sentenced to as follows: -

"We, having taken into account the period of 2 years and seven months they each spent on remand, sentence both of them to a term of 20 years each in prison."

They appeal against the sentence on the ground that;

The learned Justices of Appeal erred in law when they I. sentenced the appellants 20 years in prison instead of 20 years' imprisonment.

### IN THE ALTERNATIVE BUT WITHOUT PREJUDICE

Whether the appellants having been due to be released $\mathbf{II}.$ from prison on the $4/08/2017$ after serving a period of 20 years' imprisonment with remission are in prison and continue to be prison illegally.

## Representation

Mr. Sebugwawo Andrew on State brief represented the appellants while Mr. Mulindwa Badru, a Senior Assistant Director of Public Prosecutions represented the respondent. Both counsel filed written submissions, which they adopted at the hearing of the appeal.

### **Submissions**

Counsel for the appellants submitted that the sentence of 20 years in prison passed on the appellants by the Court of Appeal was ambiguous and illegal and denied the appellants remission which is provided for under the Prison Act (Cap 304) Laws of Uganda.

Counsel opined that the appellants should have been sentenced to 20 years' imprisonment which is a legal sentence and entitles them to remission in prison.

On the alternative ground two, counsel submitted that under Section 47 of the Prisons Act Cap 304 and Prisons Rules S. I Rule 99, the appellants were entitled to remission as of right which they were denied by the Prisons authorities because they interpreted sentences to mean imprisonment for 20 years without remission and they decided to keep the appellant in prison for 20 years yet the appellants were supposed to be released on $4<sup>th</sup>$ $\frac{1}{08}$ /2017 with remission.

It is observed that counsel for the appellant cited Section 47 of the Prisons Act (Cap 304) which is a repealed Act. The current provision is Section 84 of the Prisons Act, 2006. Counsel should always take extra care not to cite a repealed Law much as the provisions may be the same.

Counsel for the respondent opposed the appeal and submitted that sentencing the appellants to 20 years in prison is the same as sentencing them to 20 years' imprisonment. That the use of the word in prison instead of imprisonment did not affect sentence in any way and did not cause any miscarriage of justice. On the alternative ground two, Counsel for the respondent submitted that the issue of whether to give remission or not is discretion exercised by the prison authority.

In the rejoinder counsel for appellants reiterated his earlier submissions on the two grounds and prayed that the appeal be

allowed and an order that the appellants are entitled to remissions according to law like other imprisonment sentences.

#### Determination by the Court.

The Court of Appeal convicted the appellants for the offence of Simple Robbery contrary to Sections $272$ and $273(1)$ (b) of the Penal Code Act. Under Section $273(1)(b)$ which is now Section $286(1)(b)$ of the Penal Code Act, any person who commits the felony of robbery is liable on conviction by the High Court, to imprisonment for life.

Under **Section 11 of the Judicature Act** the Court of Appeal is seized with all the powers, authority and jurisdiction vested under any written Law in the court from the exercise of the original jurisdiction of which the appeal originally emanated.

The sentence of twenty years in prison pronounced by the court in exercise of its discretion is a legal sentence and we do not understand how the wording makes it an illegal sentence. Ground one is devoid of any merit and must fail.

The alternative ground two relates to the management of the sentence by the Prison Authorities and we do not comprehend how it becomes a subject of appeal to this court. Under Section5(3) of the Judicature Act;

"In the case of an appeal against a sentence and an order other than one fixed by Law, the accused person may appeal to the Supreme Court against the sentence or order, on a matter of law, not including the severity of the sentence."

We have, under ground one determined that the appellants are serving a legal sentence and the alternative ground does not raise

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any matter of law that meets the requirement of Section $5(3)$ of the Judicature Act and it is also dismissed.

Before we take leave of this matter, we wish to clarify on appellants' eligibility for remission under Section 84 of the Prisons Act on their sentence of 20 years in prison.

Section 84 of the Prisons Act, 2006 states as follows: -

"Remission of part of sentence of certain prisoners

(1) A convicted prisoner sentenced to imprisonment whether by one sentence or consecutive sentences for a period exceeding one month, may by industry and good conduct earn a remission of one third of his or her sentence or sentences.

(2) For the purpose of giving effect to subsection (1), each prisoner on admission shall be credited with the full amount of remission to which he or she would be entitled at the end of his or her sentence or sentences if he or she lost or forfeited no such remission."

Under the above provision all convicted prisoners sentenced to a term of imprisonment for a period exceeding one month are eligible for remission. It is earned for industry and good conduct and the appellants should not be denied their remission if they meet this requirement.

15th November 2019. Dated this ......

Hon. Mwangusya Justice of the Supreme Court


Hon. Opio Aweri Justice of the Supreme Court

Hon. Buteera Justice of the Supreme Court

Hon. Nshimye AG. Justice of the Supreme Court

. . . . . .

$\cdots$ Hon. Tumwesigye

AG. Justice of the Supreme Court