Maberi v Uganda (Criminal Appeal 65 of 2010) [2025] UGCA 69 (11 March 2025)

## THE REPUBLIC OF UGANDA

## IN THE COURT OF APPEAL OF UGANDA AT KAMPALA

Coram: Mulyagonja, Tibulya & Kazibwe Kawumi, JJA

CRIMINAL APPEAL NO. COA-00-CR-CN-0065-2010

## **BETWEEN**

#### **MABERI SIMON**::::::::::::::::::::::::::::::::::::

## **AND**

## UGANDA:::::::::::::::::::::::::::::::::::

(*An appeal against the decision of Musota, J. (as he then was)* delivered on 29<sup>th</sup> April 2010 in Mbale Criminal Session Case No 51 of $2009$

## **JUDGMENT OF THE COURT**

### **Introduction**

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The appellant was indicted with the offence of aggravated defilement contrary to section 129 $(3)$ , $(4)$ $(a)$ and $(c)$ of the Penal Code Act. After a 15 full trial, on $27$ <sup>th</sup> April 2010, he was sentenced to 25 years imprisonment.

## **Background**

The facts accepted by the trial judge were that on 19<sup>th</sup> August 2008, at $20$ Bubeza Parish, Buwalasi Sub-County in Sironko District, the appellant who was the biological father of the child who was then 7 years old, and whom we shall refer to as NJ, grabbed her and took her to his bedroom. He made her lie on her back and "*did bad manners*" to her in her lower private parts "which she uses to urinate." She felt pain and started

$\overline{25}$ crying but the appellant blocked her mouth in order to stop her from doing so.

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Further, that when her mother who was absent during the assault returned from the banana plantation, she found the father lying on top of her. She made an alarm to which several people responded. NJ was then taken to the Local Council I Chairperson, then to Pato Heath

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5 Centre. She was later taken to Mbale Police Station.

It was further alleged that when the mother found him having sexual intercourse with NJ, the appellant fled from the scene. However, he returned several days later and was arrested and indicted for the offence. He denied it though he admitted that the victim was his biological daughter. The trial judge found sufficient evidence to convict

him and sentenced him to imprisonment for 25 years.

Being dissatisfied with the sentence, he appealed to this court on one ground as follows:

1. The learned trial judge erred in law and fact when he sentenced the appellant to 25 years imprisonment without deducting the time spent on remand.

It was proposed that the appeal be allowed, the sentence be set aside, and that the appellant be sentenced to 23 years and 4 months' imprisonment instead. The respondent opposed the appeal.

#### Representation 20

At the hearing of the appeal on lOth March 2025, the Appellant was represented by Ms Kanyago Agnes Eres on state brief. The Respondent was represented by Ms Nakafeero Fatinah, Chief State Attorney Ms. Atubo Adit Lydia from the Office of the Director of Public Prosecutions.

Counsel for both parties filed written submissions as directed by the Registrar, which we considered before the hearing. At the hearing, they each applied that the submissions be considered as their final 25

arguments in the appeal. This judgment was therefore based on the written submissions.

Counsel for the appellant applied for leave to appeal against sentence only as is required by section 131 (1) of the Trial on Indictments Act and since counsel for the respondent did not object, it was granted. She further sought leave to file the Memorandum of Appeal out of time under rule 5 of the Court of Appeal Rules. Counsel for the Respondent did not object and leave was granted.

# Submissions of Counsel

10 The appellant's sole complaint was that the trial judge sentenced him to 25 years'imprisonment without deducting the period that he spent on remand, which it was opined resulted in an illegal sentence. Counsel for the appellant cited the Constitution (Sentencing Guidelines for the Courts of Judicature) (Practice Directions) 2013, to support her submission. She then referred court to page 34 of the Record where the trial judge considered the period spent on remand but did not deduct it from the sentence of 25 years imposed on the appellant. 15

Counsel further drew our attention to Article 23 (8) of the Constitution which provides that the court must take into account the period spent on remand whenever a custotiial sentence is imposed on a convicted person. She further referred to paragraph 15 of the Sentencing Guidelines which requires courts to deduct the period spent on remand from the sentence imposed.

25 She then referred to the decision in Walimbwa Geoffrey v Uganda, Criminal Appeal No 154 of 2o16; l2024l UGCA 134, where it was held that the period spent on remand ought to have been deducted from the sentence. She prayed that the court do quash the sentence, deduct the period of 1 year and 8 months spent on remand and then re-sentence the appellant to 23 years 4 months' imprisonment.

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In reply, counsel for the respondent submitted that there is need for this court to establish whether the trial judge complied with the provisions of Article 23 (8) of the Constitution when he sentenced the appellant to a term of 25 years' imprisonment. She further submitted

that this would determine whether this court can interfere with the sentence imposed by the trial judge. Counsel then reproduced the ruling of the trial judge and pages 32-34 of the Record. 5

Counsel then referred to the decision in Btuli Moses & 7 Others v. Uganda' CACA No 225 of 2OL4 where it was held that taking the L0 remand period into account is a mandatory requirement. She further referred to Rwabugande Moses v uganda sccA No 8 of 2otz, where it was held that a sentence arrived at without taking the remand period into account is illegal and that the remand period should be specifically taken into account with other factors. Further, that the remand period 1s must be credited to the accused person when he is sentenced to a period of imprisonment and this should be by mathematical deduction. She extensively quoted from the decision where the court set down the principle about the mathematical deduction of the remand period.

Counsel then submitted that she was aware of the decision in 20 Nashimolo v Uganda, SCCA No 9 of 2O2O, where the court held that in arriving at a sentence, the trial court must calculate the period spent on remand and subtract if from the proposed sentence. She added that though the decision in Rwabugande (supra) brought clarity to this point the decision was handed down on 3'd March 2017. She pointed out that

2s the decision in the instant case was hancied down on 29tt April 2OlO. That the decisions in these case could not be applied retrospectively.

She went on to submit that the trial judge was aware of the provisions of Article 23 (8) of the Constitution. Further that the judge considered the period spent on remand when he stated that "He is sfitl Aoung with

prospects of reform. He has spent 2O montls in prison". He therefore considered the period spent on remand, being 20 months, before sentencing the appellant to 25 years'imprisonment.

5 Counsel went on to submit that even though the Sentencing Guidelines guide the judges in sentencing the convict, it should be noted that they came into force in 2O13. The instant case was decided in 2OlO,3 years before the Guidelines came into force and they could not be applied retrospectively. That there was therefore nothing illegal about the sentence and this appeal should be dismissed and the sentence of the trial court upheld. 10

Consideration of the Appeal

The principle that this court will only interfere with a sentence imposed by the trial court when it is illegal or founded on wrong principles of law has been settled for a long time. The court will also interfere with the sentence where the trial court has not considered a material factor in the case; or has imposed a sentence which is harsh and manifestly excessive in the circumstances of the case. [See Kiwalabye Bernard v. Uganda Supreme Court Criminal Appeal No. 143 of 2OO1 (unreportedf , Bashir Ssali v. Uganda [2OOS| UGSC 2L and Livingstone l(akooza v Uganda [1994] UGSC lfl.1 We took cognizance of these principles in disposing of this appeal.

The appellant's sole compliant is that the trial judge did not deduct the period of 1 year and 8 months that he spent on remand from the sentence of 25 years that he imposed on him. Through his advocate, he proposes that a sentence of 23 years and 4 months be imposed on him after deducting the period spent on remand from the sentence of 25 years that was imposed. Counsel for the respondent did not agree and

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submits that the sentence imposed by the trial court ought to be maintained by this court.

Counsel for the appellant relied on the decision in **Walimbwa Geofrey v. Uganda** (supra) to persuade us to find that the trial judge ought to have deducted the period spent on remand from the sentence imposed, as it was held in Rwabugande Moses v. Uganda, Supreme Court Criminal Appeal 25 of 2014; [2017] UGSC 8.

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The decision of this court in **Walimbwa's case** was handed down on 31<sup>st</sup> May 2024, and before coming to its decision, the court considered various decisions on the principle that is encapsulated in Article 23 (8) of the Constitution. At page 7 of the judgment, the learned Justices found and held thus:

"Counsel for the respondent averred that the principle in **Rwabugande** (Supra) could not have been binding dn the trial judge since that case was decided after the learned trial judge had dealt with the matter before *us. We are unable to agree with that proposition given that it is at odds* with the Constitutional cases of Attorney General v Susan Ktgula and 417 Others [20091 UGSC 6 and Duke Mabeya v Attorney General [2023] UGCC 104 which held that where there is a new rule of constitutional interpretation in respect of a penal provision, that new rule should apply to all existing matters that have not been finally resolved. It would therefore follow that with regard to the matter before us, being still alive in the appellate system, this rule should apply to it.

To be clear, we are aware that the Supreme Court in **Nashimolo Paul** $25$ Kiboko v. Uganda [2020] UGSC 24 (sic)<sup>1</sup> held that the Rwabugande rule should apply to only those cases that were decided at first instance after the **Rwabugande** decision was made on $3^{rd}$ March 2017. This position conflicts with the Supreme Court decision in **Attorney General** v. Susan Kigula and 417 Others (supra) which was a constitutional appeal (with 7 Justices sitting) from a decision of the Constitutional Court 30 which applied the new interpretation to all existing cases that had not been finally resolved.

<sup>&</sup>lt;sup>1</sup> The media neutral citation according to ULII is Nashimolo Paul Kibolo v Uganda [2020] UGSC 24. The last name was Kibolo, not Kiboko.

The Supreme Court in **Nashimolo Paul Kiboko v Uganda** (supra) (a criminal appeal with 5 Justices sitting) did not refer at all to **Attorney General v Susan Kigula and 417 others** (supra) which in our humble view was the controlling authority on this point, and bound both the Supreme Court, and all courts below. We are therefore constrained to follow, Attorney General v. Susan Kigula and 417 others (supra) with regard to the application of the **Rwabugande** rule, rather than Nashimolo Paul Kiboko v Uganda (supra)

Given the above, the learned trial Judge ought to have deducted the *period that the appellant had spent on remand, which he did not do. We thus 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.*"

{*Emphasis added*}

The Supreme Court in **Rwabugande Moses** (supra) reviewed several of its decisions about the application of the principle in Article 23 (8) of 15 the Construction before it set down the rule that has guided that courts the manner in which that provision is applied. At pages 14-15 of the judgment, the court observed and held thus:

> "The principle enunciated by the Supreme Court in **Kizito Senkula vs.** Uganda SCCA NO. 24 of 2001; Kabuye Senvewo vs. Uganda SCCA NO. 2 of 2002; Katende Ahamad vs. Uganda SCCA NO.6 of 2004 and Bukenya Joseph vs. Uganda SCCA No. 17 of 2010 is to the effect that, the words "to take into account" does not require a trial court to apply a mathematical formula by deducting the exact number of years spent by an accused person on remand from the sentence to be awarded *by the trial court.*

> The principle of stare decisis et non quieta movera, which is applicable in our judicial system, obliges the Supreme Court to abide or adhere to its previous decisions. However, Article 132 (4) of the Constitution creates an exception and states that the Supreme Court may, while treating its own previous decisions as normally binding, depart from a previous decision when it appears to it right to do so.

> We have found it right to depart from the Court's earlier decisions mentioned above in which it was held that consideration of the time spent on remand does not necessitate a sentencing court to apply a mathematical formula.

> It is our view that the taking into account of the period spent on remand by a court is necessarily arithmetical. This is because the period is known

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$\mathsf{S}$ with certainty and precision; consideration of the remand period should therefore necessarily mean reducing or subtracting that period from the final sentence. That period spent in lawful custody prior to the trial must *be specifically credited to an accused.*

$\mathsf{S}$ We must emphasize that a sentence couched in general terms that court has taken into account the time the accused has spent on remand is ambiguous. In such circumstances, it cannot be unequivocally ascertained that the court accounted for the remand period in arriving at the final sentence. Article 23 (8) of the Constitution (supra) makes it $10$ mandatory and not discretional that a sentencing judicial officer accounts for the remand period. As such, the remand period cannot be placed on the same scale with other factors developed under common law such as age of the convict; fact that the convict is a first time offender; remorsefulness of the convict and others which are discretional 15 mitigating factors which a court can lump together. Furthermore, unlike it is with the remand period, the effect of the said other factors on the court's determination of sentence cannot be quantified with precision.

> We note that our reasoning above is in line with provisions of **Guideline** 15 of the Constitution (Sentencing Guidelines for Courts of Judicature) (Practice) Directions, 2013 ..."

About one year later, the Supreme Court explained the rule that was set down in that case in Abelle Asumani v. Uganda, Criminal Appeal No 66 of 2016; [2018] UGSC 10. At page 5 of its decision the court observed and held thus:

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"What is material in that decision is that the period spent in lawful custody prior to the trial and sentencing of a convict must be taken into account and according to the case of **Rwabugande** that remand period should be credited to a convict when he is sentenced to a term of imprisonment. This Court used the words to deduct and in an arithmetical way as a guide for the sentencing Courts but those metaphors are not derived from the Constitution.

We find also that this appeal is premised on a misapplication of the decision of this Court in the case of **Rwabugande** (supra) which was decided on 3<sup>rd</sup> March 2017.

In its Judgment this Court made it clear that it was departing from its earlier decisions in Kizito Senkula vs. Uganda SCCA No.24/2001; Kabuye Senvawo vs. Uganda SCCA No.2 of 2002; Katende Ahamed

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as. t gdnda SCCA No.6 oJ 2OO4 and Bukenga Joseph us. Uganda SCCII No.77 of 2O7O uthich held that .foaklng lnto consideratlon of the time spent on refitand d,oes not necessltate a sentenclng Court to applg a mo;themo;tical fonnula."

This Court and the Courts below before the decision in Rwabuoande (suoro,) uere follouina the law as it uas in the preuious decisions aboue quoted since that uas the lau then.

After the Court's decision in the Rwabuqand,e cq.se this Court and the Courfs below haue to follou,t the Dosition of the law as stated in <sup>10</sup> Rwabuoande (supra)."

{Emphasis added}

In Nashimolo Paul Kibolo (supra) the Supreme Court faulted this court for not applying the rule that was set down in Rwabugande (supra). The court reiterated its position on the principle by setting down part of the excerpt above, at page 18 of it's judgment, and then held thus:

"This in our uiew, brought claritg on the preuailing position of the law as contained in the case of Ruabugande Moses us. Uganda (supra).

The decision in Abelle Asuman us. Uganda (supra) utas made per incurium to the extent that it made reference to an outlanaed position.

Counsel for the respondent's contention that the Court of Appeal's omission to state that it had deducted the peiod the appellant spent on remand was a mere issue is untenable.

This ground therefore succeeds.

Hauing found that the Court of Appeal decision was illegal, this Court inuokes section 7 of the Judicature Act to arriue at an appropriate sentence in this matter."

We do not think that the statement in trIalimbwa's case (supra) that in Susan Kigula's case (supra) the Supreme Court held that the rule that the death sentence is not mandatory would apply to all cases in which the death sentence had been handed down by the courts as it was held in Walimbwats case. Instead the court identified two categories of convicts in its orders. At pages 63-64 of its judgment, the court varied the declarations that were made by the Constitutional Court as follows:

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L a 1. For those respondents whose sentences were already confirmed by the highest Court, their petitions for mercy under article 121 of the Constitution must be processed and determined within three years from the date of confirmation of the sentence. Where after three years no decision has been made by the Executive, the death sentence shall be deemed commuted to imprisonment for life without remission.

$\mathcal{L}$ For those respondents whose sentences arose from the mandatory sentence provisions and are still pending before an appellate Court, their cases shall be remitted to the High Court for them to be heard only on mitigation of sentence, and the High Court may pass such sentence as it deems fit under the law.

As it is shown in category 1 above, sentences that had been confirmed by the highest court were not reversed on account of the new constitutional rule in **Kigula's** case. Instead, the convicts had to go on to the next stage of challenging the sentence of death by applying for the prerogative of mercy. Convicts that had their appeals against the sentence still pending in appellate courts were on the other hand availed the opportunity to have them reconsidered by the High Court, after taking into account the mitigating and aggravating factors.

$20$ Similarly, the rule that was set down by the Constitutional Court in Duke Mabeya Gwaka v. Attorney General (supra) was that:

> "A new constitutional rule in the realm of criminal procedure shall only apply quasi-retroactively to all criminal cases and appeals that are pending final determination. It shall not apply retroactively to cases that *have been finally concluded.*"

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Applying the rule to the facts in that particular case, Egonda-Ntende, JCC, at page 3 of his opinion, put it thus:

"The impugned decision of the Supreme Court was heard by the Supreme Court on $22^{nd}$ September 2017 and the decision was delivered on $21^{st}$ December 2018. By the time the Rwabugande rule was enunciated on $3<sup>rd</sup>$ March 2017 the petitioner's case was still alive in the system and had not been concluded. The hearing in the Supreme Court occurred 6 months after the enunciation of the Rwabugande rule and the decision came 18

months after the Rwabugande rule. The Supreme Court was under an obligation to apply that rule. It did not. Hence the complaint by the *Petitioner in this petition which we have found, unanimously, meritorious.*"

"**Rwabugande** does not have any retrospective effect on sentences which were passed before it by courts "taking into account the periods [a

convict] spends in lawful custody". Accordingly, we find no justifiable reason to fault the High Court for passing or the Court of Appeal for confirming the sentences that were imposed on the appellants as those sentences were in conformity with the law that applied at the time the

The Supreme Court specifically dealt with the question whether the $\mathsf{S}$ rule in **Rwabugande** could apply retrospectively in **Sebunya Robert &** Another v. Uganda, Criminal Appeal No 58 of 2016; [2018] UGSC **73,** where it was held that:

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*sentences were passed."* Therefore, with regard to the application of Article 23 (8) of the Constitution, this court is still bound by the rule that was enunciated in **Rwabugande** (supra) and reiterated and emphasised in **Abelle Asuman** (supra), as it was highlighted at page 8 of this judgment.

In the instant case, while sentencing the appellant on the 27<sup>th</sup> April $20$ 2010 the trial judge (at pages 41-42 of the Record) found and held as follows:

> "In view of the above legal preposition, and given that the State has not asked for the ultimate sentence which they are bound to defend beyond *doubt I am inclined not to consider giving the convict the maximum death* penalty. He is still young with prospects for reform. He has spent 20 *months in prison. Court has no social report about the convict's station in* life and general conduct. Nevertheless, our society abhors a conduct where a parent turns on his biological child and molests her. It expects such a character to be banished for some time. For those reasons, I will sentence the convict to 25 years' imprisonment."

## *{Emphasis added}*

Clearly, the trial judge did not deduct the period of 20 months spent on remand though he *did* consider it. We so find because it is one of

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the reasons that he gave for handing down a sentence of 25 years' imprisonment. In Abelle Asuman (supra) the Supreme Court observed that:

Where a sentencing Court has clearly demonstrated that it has taken into account the period spent on remand to the credit of the convict, the sentence would not be interfered with by the appellate Court only because the sentencing Judge or Justices used different words in their judgment or missed to state that they deducted the period spent on remand. These may be issues of style for which a lower Court would not be faulted when in effect the Court has complied with the Constitutional obligation in Article 23(8) of the Constitution.

This Court and the Courts below before the decision in **Rwabugande (supra)** were following the law as it was in the previous decisions above quoted since that was the law then.

For the reasons that we have given above, we could not deduct the period spent on remand on the basis of the decision in **Walimbwa's** case. (Supra). The appellant was sentenced to 25 years' imprisonment 7 years before the Supreme Court handed down its decision in **Rwabugande.** The trial judge considered the period that the appellant spent on remand before he sentenced him and we find that the sentence imposed was legal.

The sole ground of appeal that was raised by the appellant therefore fails.

However, we deemed it appropriate to consider whether the sentence of 25 years' imprisonment that was imposed upon him was appropriate in the circumstances of this case. This court has the power to interfere with the sentence of the trial court in the event that it has imposed a sentence which is harsh and manifestly excessive in the circumstances and it is our duty as in appellant court to ensure that there has been consistency in sentencing in cases that have facts that are somewhat similar. (See Aharikundira Yustina v. Uganda; SCCA No. 27 of 2015;

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...

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[2O181 UGSC 48. In order to establish that, we considered sentences that have been imposed for the offence of aggravated defilement in somewhat similar circumstances.

5 In Opio Moses v Uganda; Civil Appeal No. 118 of ?OLO where the Appellant had defiled his 9-year-old daughter, this Court confirmed a sentence of 27 years' imprisonment.

In Ssenonga Frank v Uganda; Criminal Appeal No O74 of 2O1O, the appellant defiled his daughter who was below 14 years of age. This court sentenced him to 28 years and 4 months' imprisonment.

In Oumo Ben alias Ofwono v Uganda; SCCA No. 20 of 2o16 (unreportedf a sentence of 26 years' imprisonment was upheld where the appellant defiled his 3 and a half year old daughter. 10

In the instant cae, the trial Judge imposed a sentence of 25 years' imprisonment upon the appellant who defiled his biological daughter

who was 7 years old. We find that this sentence is within the range of sentences that have been handed down by this court and the Supreme Court in cases of aggravated defilement, committed by the father of the of a girl child against her. 15

We therefore find that the appeal has substantially failed and we hereby dismiss it. The Appellant shall continue to serve his sentence of 25 years'imprisonment commencing on the 29th April, 2OO9, the date on which he was first sentenced. 20

It is so ordered.

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Dated this day of 2025.

{ Irene JUSTICE OF APPEAL 25 a

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D

Tibulya OF APPEAL

Moses Kazibwe Kawumi JUSTICE OF APPEAL

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