Kwikiriza v Uganda (Criminal Appeal 271 of 2014) [2024] UGCA 244 (4 September 2024)

Full Case Text

#### THE REPI'BLIC OI. UGANDA

# IN THE COURT OF APPEAL OI. UGANDA AT MBARARA CRIMINAL APPEAL NO. 271 OF 2014

(Coram: Eva Luswata, Oscar Kthtka and Asa Mugenyi, JJA)

KWIKIRIZA ABEL:::::::::::::::::::::::::::::::::::::::::::::::::::::::::::: APPELLANT

#### VERSUS

UGANDA:::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::: R. ESPONDEilT lAppeal from the decision of Justice Bashaijja K. An&ew in the High

Court of Mbarara HC Crim. Session No. O92 of 2Ol2 dated 27tt

March,20l3f

#### WDGMENT OF THE COURT

## Introduction

The appellant was indicted and convicted of Murder contrary to section 188 & 189 of the Penal Code Act Cap l2O, he was sentenced to 18 years' imprisonment.

#### Background

The brief facts are that; On the 24th day of July,2011 at Ntambazi cell Ntabazi parish in Kiruhura district, the appellant picked a quarrel with his mother a one Peninah Kenyangi (now deceased) and murdered her. The appellant used a panga to cut the deceased's leg. The altercation arose out of the fact that the deceased had threatened to chase the appellant's wife from her home. The deceased, as a result of the assault, bled to death. Immediately after cutting the deceased, the appellant went into hiding but he was later arrested.

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Investigations were carried out and police recovered a panga which was used by the appellant. The appellant admitted committing the offence in his charge and caution statement. At the trial he was charged and sentenced to 18 years' imprisonment upon his own plea of guilt.

#### **Ground of Appeal**

The learned trial judge erred in law when he sentenced the appellant without considering time the appellant had spent on remand thereby occasioning miscarriage of Justice to the appellant.

#### **Representation**

At the hearing of the Appeal, the appellant was represented by Mr. Tumwebaze Emmanuel on State Brief, while the Respondent was represented Mr. Semalemba Simon Peter, Assistant DPP. Both parties proceeded by way of written submissions which have been considered.

#### Submissions for the Appellant

Counsel for the appellant faulted the learned trial judge for sentencing the appellant to 18 years' imprisonment without considering and deducting the period the appellant spent on remand. Failure to consider and deduct the time spent on remand rendered the sentence illegal. Counsel cited the case of; Rwabugande Moses v Uganda [2017] UGSC 8 (3 March 2017) where court held;

> "....the taking into account of the period spent on remand by a court is necessarily arithmetical. This is because the period is known with certainty and precision...."

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Lastly the appellant prayed that the period spent on remand be deducted from the sentence of 18 years'.

## Submisslons for the Respondent

Counsel for the respondent in reply submitted that the law requires that period spend on remand has to be deducted. It was the respondent's submission in response to the appellant's contention that the period spent on remand was not deducted, that; the learned trial Judge took cognisance of the fact that the was on remand. Counsel submitted that the case of Rwabugande Moses v Uganda Crlm. Appeal No. 25 of 2Ol4 did not apply since the appellant was convicted on the 27tn of March 2013 before the Rwabugande case (supra) was decided.

Lastly counsel submitted that there was no miscarriage of justice occasioned and that the court be pleased to dismiss this ground of Appeal.

## Submlsslons in ReJoinder.

In rejoinder, Counsel for the appellant submitted that the Rwabugande case applies to all appeals that are pending final determination by virtue of the principle quasi-retroactivity which was discussed in the case of Duke Mabeya Crwaka vs Attorney General, Constltutional Petltlon No.36 of 2O23 where the Court of Appeal held that "quasi-retroactivity" applies when a new rule of law is applied to an act or transaction in the process of completion.

### Courtts consideration

We have carefully taken into consideration the appellant's appeal, the submissions of counsel, laws, and judicial precedents referred to by counsel.

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The law that governs appellate courts while sentencing was discussed in Kiwalabye Bernard v Uganda, Supreme Court Criminal Appeal No. 143 of 2OOl where court held that, "the appellate coura k not to lnterfere uttth the sentence Tmposed bg a trlal coutA whbh has exerclsed tts dlscretlon ott setttence unless the exerclse of the dlscretlon is such that lt restlts ln the sentence lmposed to be manltestlg excesslae or so low as to o;m.ount to a mlscarrlage of justtce or where a trlal coura Tgnores to consider an lrnportant matter or clrc.um.stances uhlch ought to be consldered uthlle passlng the sentence or uthere the sentence lrnposed ls urong ln prlnclple.

The appellant's counsel contended that the learned trial judge sentenced the appellant to 18 years' imprisonment without considering and deducting the period the appellant spent on remand. Counsel relied on the case of; Rwabugande Moses v Uganda 12014 U GSC 8 (3 March 20171 which case enunciates the principle that the period spent on remand ought to be deducted.

Counsel for respondent submitted that the case of Rwabugande case (supra) did not apply since the appellant was convicted on the 27th of March 2O13 before the Rwabugande case (supra) was decided.

Whereas Counsel for the Respondent argued that the sentence which is the subject of this appeal was passed way before the Rwabugande case (supra) and that therefore, failure to mathematically subtract the period spent on remand was not fatal, the recent decision in Nashimolo Paul Kibolo v Uganda I2O2O| UGSC 24 (9 September 2O2Ol the Supreme Court clarified the discrepancy between the decision in Rwabugande (supra) and Abelle v Uganda (Civil Appeal 66 of 2OL6l [2018] UGSC 1() (f9 April 2O18) . It in effect held that

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the held that the Abelle decision was made "perincurious to the extent that it made reference to an outlawed position" and as such the position stated in Rwabugande (supraf was the correct one.

It is now well settled that; Rwabugande lsupra) reflects the principle laid out in Article 23(8) of the 1995 Constitution of the Republic of Uganda which provides that at all times the trial Judge is required to compute the period that the convict spent in larn{ul custody before conviction and deduct it from the sentence the trial judge renders and the deduction has to arithmetically be reflected in the Judgement.

In the instant case, while sentencing the appellant, the learned trial Judge stated as follows;

"In reaching the sentence, giuen, I haue considered the grauitg of the offence (murder), age of conuict (still goung) and only 2O years. The fact and that he pleaded readilg guilt and that he ts first offender, he has spent some time on remand too. All factors taken togetter, the conuict is sentenced to eighteen gears' impisonment."

From the excerpt above, we carefully considered the wording used by the learned trial judge, it is evident that the learned trial judge put into consideration the mitigating factors of the case. It is also evident that the learned trial judge considered the time the appellant spent on remand however, he did not deduct the same from the sentence.

When sentencing, courts are mandated to consider the period spent on remand. Article 23(81 of the Constitution of the Republic of Uganda 1995, as amended stipulates that,

oWhere a person ls conulcted and sentenced to a tenn oJ Tmprisonment tor an offence, ang perlod he or she spend.s ln laufal c'ustody ln respect of the oflence before the completTon

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## of his or her trial shall be taken into account in imposing the term of imprisonment."

Principle 15 of the Sentencing Guidelines provides that.

"(1) The court shall take into account any period spent on remand in determining an appropriate sentence.

(2) The court shall deduct the period spent on remand from the sentence considered appropriate after all factors have been taken into account."

In the instant appeal case before us, it is our considered view that the learned trial Judge did not deduct the period that the appellant had spent on remand. Merely stating that "he has spent some time on remand" is no clear indication that the trial Judge deducted the period that the appellant had spent on remand. We find the sentence illegal for violating Article 23 (8) of the Constitution of the Republic of Uganda and we set it aside for that reason.

In the premise, we exercise the powers of this Court granted under the provisions of Section 11 of the Judicature Act. Having taken into account the mitigating and aggravating factors that were presented to the trial Court, we hereby sentence the appellant to 18 years. From 18 years we deduct a period of 1 year and 5 months, as time spent on remand. The appellant is hereby sentenced to 16 years' and 7 months' imprisonment, from the date of conviction which was $27th$ day of March, 2013.

In conclusion therefore, this appeal succeeds.

We so Order

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| day of this 2024 Dated at Mb | |---------------------------------------| | ,t ( | | | | HON. JUSTICE LUSWATA | | . V | | | | KIHIKA HON. JUSTI | | | | | | |

HON. WSTICE MUGENYI

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