Kwashaho and 2 Others v Uganda (Criminal Appeal 85 of 2018) [2021] UGSC 71 (17 September 2021)

#### THE REPUBLIC OF UGANDA

## IN THE SUPREME COURT OF UGANDA AT KOLOLO

# Coram: Arach-Amoko; Opio-Aweri; Mugamba; Tuhaise; & Chibita, **JJSC**

#### CRIMINAL APPEAL NO. 85 OF 2018

1. Kwashaho Francis

2. Nakabugo Josephine

3. Habyarimana Anthony Alias Atoni ....................................

Versus

$Uganda \dots \dots \dots \dots \dots \dots \dots \dots \dots \dots \dots \dots \dots \dots \dots \dots \dots \dots \dots$

[Appeal arising from the judgment of the Court of Appeal (Egonda-Ntende, *Obura, Musota, JJA) in Criminal Appeal No. 264 & 277 of 2012, dated 6<sup>th</sup>* **July 2018]**

#### **Judgment of the Court**

This is the appellants' second appeal following the dismissal of their appeal by the Court of Appeal which upheld the sentence passed against them by the learned trial Judge.

ARA

#### **Background**

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The background of this case as accepted by the trial court and the first appellate court is that, Walugembe Fred (deceased) lived with the $2<sup>nd</sup>$ appellant (Nakabugo Josephine) as husband and wife for sixteen years. In 2009, the couple had a misunderstanding and the deceased advised the $2^{nd}$ appellant to leave his home. Feeling cheated, the $2^{nd}$ appellant hatched a plan to kill the deceased. She asked the $1<sup>st</sup>$ appellant to help her carry out the plan. The 1st appellant in turn contacted the 3rd

appellant to assist him execute the plan. On the fateful day, in the month of September 2009, the $2^{nd}$ appellant invited the $1^{st}$ and $3^{rd}$ appellants to her house. While in the house, a quarrel ensued between the deceased and his assailants who were armed with pangas. Walugembe Fred was killed. The 1<sup>st</sup> and 3<sup>rd</sup> appellants dumped his body in a pit which had been dug in the compound to tap water. The appellants later removed the body of the deceased from the pit and threw it in the bush/forest. On $18/10/2009$ , police and residents of the area discovered the body where it had been dumped. On $19/10/2009$ , the appellants were arrested and indicted for the offence of murder contrary to sections 188 and 189 of the Penal Code Act. They were each tried, convicted and sentenced to imprisonment for the reminder of their lives by the trial Court, on 25<sup>th</sup> November 2011.

The appellants appealed to the Court of Appeal and sought leave of Court to challenge the severity of sentence. They argued that the sentences were harsh and manifestly excessive. The Court of Appeal upheld the sentences and dismissed the appeal. The appellants have now filed this second appeal based on one ground, that:-

"1. The learned Justices of Appeal erred in law when they confirmed and upheld an illegal sentence given to the appellants by the trial Judge." $\sqrt{OA}$

#### **Representation**

At the hearing of the appeal, the appellants were represented by Mr. Jolly Mutumba, on state brief, while the respondent was represented by Mr. Andrew Odiit, Senior Assistant Director of Public Prosecutions $(DPP).$

The 1<sup>st</sup> and 3<sup>rd</sup> appellants appeared in Court *via* video link from Luzira Upper Prison. The 2<sup>nd</sup> appellant also appeared in Court *via* video link from Luzira Women's Prison.

The parties filed written submissions which were adopted before this Court at the commencement of hearing the appeal.

## **Submissions for the Appellants**

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Firstly, Counsel for the appellants brought it to the attention of this Court that the issue of the legality of sentence was not argued and challenged in the Court of Appeal; that what was challenged in that court was the harshness of the sentence, and that is what the Court of Appeal ruled on. According to Counsel, the issue is whether this Court can address an issue which the first appellate court had no opportunity to rule on, but which has nevertheless been brought to the attention of this Court. $\alpha$

On the sole ground of appeal, Counsel for the appellants submitted that the learned Justices of Appeal erred in law when they upheld an illegal sentence given by the learned trial Judge, because the sentence that was passed by the trial judge that is, "Imprisonment for the remainder of your life" against each of the appellants was illegal. Counsel contended that the said sentences contravened the principle of legality provided for in Article 28 (12) of the Constitution of the Republic of Uganda.

Counsel prayed this Court to find merit in this appeal, fault the Court of Appeal, set aside the judgment and sentence, and pass an appropriate and lenient sentence. He submitted that 20 years' imprisonment would be appropriate in the circumstances. He prayed that, taking into account the 2 years the appellants spent on remand, this Court should order the appellants to serve 18 years in prison from

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the $25$ <sup>th</sup> November 2011, the day they were convicted and sentenced by the learned trial Judge.

## **Submissions for the Respondent**

In reply, Counsel for the respondent submitted that, as rightly pointed out by the appellants' Counsel, the issue of the legality of sentence was never raised, argued or challenged in the Court of Appeal. He submitted that the appellants in that court only challenged severity of sentence. Counsel cited Section 5 (3) of the Judicature Act, Cap 13, and submitted that, from the appellants' prayers, it would appear the appellants are appealing against the severity of the sentence, which right is not available to them. Counsel also cited Rule 70 (1) of the Rules of this Court and submitted that it would be unfair for this Court to fault and criticize the Justices of Appeal on a matter which was not an brought to their attention.

Counsel further submitted however that the learned Justices of Appeal were alive to the issue of the legality of the sentences even though it was not brought to their attention as the first appellate court; and that their observation in their judgment that the sentences imposed on the appellants were vague cured the ambiguity/vagueness of the sentence. He contended that there was therefore no reason to warrant the learned Justices of Appeal to first declare the sentence illegal, then proceed to pass what Counsel for the appellants called "an appropriate and lenient sentence", without bearing in mind that this is a second appeal. According to Counsel, even if the learned Justices of Appeal had decided to set aside the sentences as urged by Counsel for the appellants, they would still have come to the same conclusion as they did in their last paragraph of their judgment.

Counsel prayed that this Court finds that no injustice was occasioned to the appellants, that there is no reason to fault the learned Justices of Appeal in the decision they took, and to find that this appeal has no merit and so dismiss it.

## **Resolution of the appeal**

This is a second appeal and it is against sentence only. It challenges the legality of the sentence passed against the appellants by the learned trial Judge and upheld by the Court of Appeal.

Section 5 (3) of the Judicature Act, Cap 13, states:-

"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."*

This qualifies this appeal as one against sentence on a matter of law.

That aside however, before we proceed to resolve this appeal, we must consider a matter that was raised on whether this Court can entertain the issue of the legality of the sentence which was not raised at the Court of Appeal. var

We note that Counsel for the respondent, in his submissions, concurred with the appellants that the issue of legality of the sentence was not raised at the Court of Appeal. After carefully perusing the record of appeal, however, we respectfully differ from this position.

The amended memorandum of appeal filed in the Registry of the Court of Appeal on 6<sup>th</sup> June 2018 (page 5 of the record of appeal), partly stated as follows:-

"1. The Learned Justices of Appeal erred in law and in fact when she sentenced the appellant to imprisonment for the reminder of their life.

**Wherefore** the appellants pray for the following remedies and orders:-

- The appeal be allowed. $(a)$ - *The sentence be set aside.* $(b)$ - The appellant be given a lesser sentence." (underlined for $(c)$ emphasis).

In addition, the record of proceedings of the Court of Appeal held on 6<sup>th</sup> June 2008 shows the appellants' Counsel stating as follows at page $9:-$

## "Mr. Tusingwire:

*They are aggrieved against sentence my Lords.*

*Under section 132(b) of the TIA it provides that the accused person may* with leave of Court of Appeal appeal to the court of appeal against the sentence alone imposed by the High Court other than the sentence fixed by law. In the instant case my lords. The sentence against the appellant is not a sentence fixed by law and therefore we seek leave to have the appellants appeal to this court (sic) this sentence. We so pray.

### *Justice Musota*

I was asking a question whether that sentence exists in the Penal Code Act.

an

Mr. Tusingwire

It doesn't exist in the Penal Code Act, it is not a sentence fixed by law.

### *Justice Egonda*

Leave to appeal against sentence only is granted." (underlined for emphasis).

The appellant's Counsel then proceeded to submit that the sentence for imprisonment for the reminder of the lives of the appellants was harsh and manifestly excessive. He concluded by praying that the court under section 11 of the Judicature Act has powers to reduce the said sentence.

In reply, the respondent's counsel, at page 15, continued with her submissions as follows:-

"My lords it is our submission that the sentence, 1. Is fixed by law, 2. It is not harsh and excessive...." (underlined for emphasis).

In their judgment, the learned Justices of Appeal first considered the nature of the sentence, that is, a term of imprisonment for the reminder of each of the appellants' lives, and then proceeded to determine whether the sentences are indeed harsh and excessive in the circumstances as alleged.

We accordingly deduce from the record as quoted above that, much as the appellants' Counsel did not submit about the legality of the sentence (which in our considered opinion reflects poor research about the case, or poor case management), the sole ground of appeal, the prayers in the amended memorandum of appeal, the appellants' Counsel's address to court, the respondent's Counsel's submissions in reply, and the approach of the learned Justices of Appeal to the appeal as reflected in their judgment clearly shows that the appeal was argued on the basis, firstly, that the sentence was not authorized by law (illegal sentence), and, secondly, that it was manifestly harsh and excessive.

We therefore do not agree with the position taken by Counsel for both sides in this appeal that the question of the legality of the sentence was not raised before the Court of Appeal. RA

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Nonetheless, it is the appellants' contention that, much as the ground was not raised before, there are exceptions to this general rule. The appellants' Counsel relied on the case of Rwabugande Moses V Uganda, Criminal Appeal No. 25 of 2014 where the issue of the trial Judge not considering the remand period had not been challenged in the Court of Appeal, but was nevertheless brought to the attention of this Court on appeal. This Court, before considering the said new issue or ground, had this to say:-

"The general rule is that an appellate court will not consider an argument raised for the first time on appeal. Rule 70 (1) (a) of the *Supreme Court Rules provides:*

$(1)$ At the hearing of an appeal-

(a) The appellant shall not, without leave of the court, argue any ground of appeal not specified in the memorandum of appeal or in any supplementary memorandum lodged under rule 63 of these Rules;

However, there are exceptions to this general rule. For example, as explained in the well known legal maxim, "Ex turpi causa non oritur action", a court of law cannot sanction what is illegal. (See: Kisugu Quarries vs- the Administrator General SCCA No. 10 of 1998)."

Thus, based on the authority of Rwabugande Moses V Uganda (supra), even if it were to be accepted by this Court that the appellants did not raise the issue of legality of the sentence in the appellate court, but are raising it in the instant appeal, this case would fall within the exception of the general rule since it deals with the legality (or illegality) var of the sentence.

Thus, whatever the argument, this Court can rightly proceed to consider the appellant's sole ground of appeal, that is, that the sentence passed by the High Court and confirmed by the Court of Appeal was illegal because it contravened the principle of legality provided for in Article 28 (12) of the Constitution of the Republic of Uganda.

Article 28 (12) of the Constitution provides that, except for contempt of court, no person shall be convicted of a criminal offence unless the offence is defined and the penalty for it prescribed by law. In ordinary language, an illegal sentence is one imposed after a valid conviction, but not authorized by law, for example, a sentence in excess of that imposed by statute, or imposition of an unauthorized form of punishment.

In this appeal, the record of appeal shows at page 60 (page 4 of the Court of Appeal judgment) that before upholding the sentence of "imprisonment for remainder of your lives" against each of the appellants, the learned Justices of Appeal observed as follows:an

"We take note of the choice of words used by the learned trial judge in sentencing the appellants which we respectfully find vague. For that reason we wish to first clarify on that before proceeding to determine the ground of appeal. The trial judge sentenced each of the appellants to a term of imprisonment for the remainder of their lives. There is no provision of such sentence in our laws. What is provided for under our laws is imprisonment for life or life imprisonment. We believe that by *sentencing the appellants to 'a term of imprisonment for the remainder* of their lives', the learned trial Judge was referring to a sentence of life imprisonment as defined by the Supreme Court in **Tigo Stephen vs Uganda** (supra), where it was stated that life imprisonment means *imprisonment for the natural life term of the convict, though the actual* period of imprisonment may stand reduced on account of remission earned. We therefore find that the appellants are appealing against a sentence of life imprisonment which according to them is harsh and *excessive in the circumstance of this case.*" (underlined for emphasis).

In their conclusion, they stated:-

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"It should be noted that the maximum sentence for the offence of murder" is death. However in the exercise of her discretion, the learned trial Judge found it befitting to sentence the appellants to life imprisonment, which sentence we find lenient given the circumstances of the case....." (underlined for emphasis)

Thus, as deduced from their judgment, it is our considered opinion that the sentence the learned Justices of Appeal had in mind when they were upholding the sentence of the learned trial Judge was life imprisonment, not "imprisonment for the remainder of their lives." This is clearly explicit in their judgment quoted above since, after noting and finding that the choice of words used by the learned trial Judge in sentencing the appellants vague, they made a finding that the appellants are appealing against a sentence of life imprisonment.

We note from the judgment of the learned Justices of Appeal as quoted above, that the learned Justices of Appeal were alive to the issue of the legality of the sentence, since they noted the vague nature of the learned trial Judge's words, "imprisonment for the remainder of your life" when sentencing each of the appellants. The learned Justices of Appeal, having found the said words to be vague, aptly corrected it to state that the learned trial Judge was referring to a sentence of life imprisonment. Thus, in our considered opinion, their observation in their judgment that the sentence imposed on the appellants was vague cured the ambiguity/vagueness of the sentence. nan

It was only after observing, noting and finding that the sentence imposed against the appellants was vague, and aptly correcting it to reflect the proper sentence of life imprisonment passed against each of them as spelt out under the penal law that they proceeded to determine whether such sentence was harsh and excessive in the circumstances of the case. There was therefore no reason to warrant the learned Justices of Appeal to first declare the sentence illegal, for to them, it was merely vague, and then proceed to pass an appropriate sentence. Thus, as correctly argued by the respondent's Counsel, had the learned Justices of Appeal decided to set aside the sentence as urged by Counsel for the appellants, they would have still come to the same conclusion as they did in their last paragraph of their judgment.

The foregoing situation would be different if the learned Justices of Appeal had proceeded to uphold the vague sentence passed by the learned trial Judge without first observing and finding that it was vague and consequently correcting it aptly to reflect the proper sentence under the Penal laws. It is then, and only then, that the appellants would be vindicated in their argument that the sentence passed by the High Court and confirmed by the Court of Appeal was illegal because it contravened the principle of legality provided for in Article 28 (12) of the Constitution of the Republic of Uganda.

Thus, for the reasons given, we find no cause for declaring the sentence passed by the Court of Appeal illegal.

Secondly, having carefully perused the record of appeal, we note that the appellants committed a heinous crime that resulted in the death of Walugembe Fred. The learned Justices of Appeal correctly noted that the maximum sentence for the offence of murder is death; that however in the exercise of the learned trial Judge's discretion, she found it befitting to sentence the appellants to life imprisonment. The Court of Appeal found such sentence lenient given the circumstances of the case, var but proceeded to uphold it.

We also find no reason to set aside the sentence of life imprisonment upheld by the Court of Appeal against each of the appellants, the said

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court having properly applied the law when sentencing them, and we uphold the same.

This appeal is dismissed.

Dated at Kampala this ....................................

$A$ $\cdot$ $a$ Stella Arach-Amoko

Justice of the Supreme Court

Rubby Opio-Aweri **Justice of the Supreme Court**

Paul Mugamba Justice of the Supreme Court

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$V$ **Percy Night Tuhaise** Justice of the Supreme Court

Pul Pilita

**Mike Chibita** Justice of the Supreme Court