Mabirizi v Uganda (Criminal Appeal 129 of 2019) [2024] UGCA 319 (22 November 2024)

Full Case Text

### THE REPUBLIC OF UGANDA

# IN THE COURT OF APPEAL OF UGANDA AT KAMPALA

*(Coram: Irene Mulyagonja, Margaret Tibulya, and Moses Kazibwe JJA)*

### CRIMINAL APPEAL NO. 129 OF 2019

## MABIRIZI MUSISI STEVEN :::::::::::::::::::::::::::::::::::

#### **VERSUS**

UGANDA:::::::::::::::::::::::::::::::::::

[Appeal against both conviction and sentence arising from the Judgment of the High Court of Uganda at Luwero (Hon. Lady Justice Anna B. Mugenyi) delivered on 2/7/2018 in Criminal Session Case No. 150 of 2015]

# **JUDGMENT OF THE COURT**

### **Introduction**

- The Appellant was convicted on two counts of Aggravated Robbery contrary to $[1]$ Section 285 and 286 (2) of the Penal Code Act, Cap. 120 and sentenced to 20 years' imprisonment on each count, to be served consecutively. - The prosecution's case was that on 13th July 2014, Pw5 (D/Sgt Yasin Alion) $[2]$ received information that there were people who had been badly beaten. Following that information, Pw5 got Joram Omondi (Pw7) and Kizito Stephen who appeared to have been beaten, in a vehicle CEO 12 Premio Toyota, silver in color, whom he took to hospital. - The following day (14th July 2014), one of the victims (Steven Kizito) gave a $[3]$ detailed statement in which he stated that they found the assailants who passed off

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as traffic police officers, at **Yandwe** along Gulu-Kampala Road. The assailants had guns, knives and black sticks. The victims were robbed of items which included two laptops (one white Lenovo and the other, black Mac book), 9800 dollars, 50 Sudanese pounds, two phones (one was Samsung), powdered milk and fruits, personal clothes, bed sheets, one blanket and some Ugandan currency whose amount he could not establish.

- [4] On the 28th of July 2014, Pw5 (**D/Sgt Yasin Aliyon**) and Pw2 (**IP Kiwanuka Ben**) went to **Yandwe** and laid an ambush. While they were on patrol, they saw the Appellant ridding with two others on a motorcycle. When the Appellant saw the patrol vehicle he increased his speed, but the police got to him and ordered him to stop but he did not comply. Instead, the Appellant's passengers jumped off the motorcycle and ran away, leaving him behind. - [5] The Appellant was arrested, and upon being searched found with light reflector jackets, two pangas, a metal bar, one pair of green gumboots, to pairs of shoes similar to police shoes, a cap similar to a military cap, dirty clothes, a pair of jeans, a blue jacket similar to a police reflector, a pair of trousers which was similar to a police uniform, a knife and a green military jacket. - [6] He informed the police that he with others was coming from Lubengeswe on a robbery mission. He also informed them that their robbery target were motor vehicles coming from South Sudan because people from South Sudan had money on them. - [7] In the morning of 24th July 2014, the Appellant led the police to his residence where two laptops (Lenovo and Mac book), two smart phones, 25 Sudanese pounds, a mattress and bed sheets, about 20 pieces of B29 washing soap, were recovered.

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- [8]The Appellant admitted to the police that together with Nsereko Yuda and Sunday, he robbed the property from a Premio vehicle. He led the police to the homes of his associates (Kigwe Moses, Sunday Moses, Nsereko Yuda and Mulugwara), where B29 soap and two phones (Samsung and Nokia), empty tins of Milk, biscuits and powdered juice, the victims' clothes, bed sheets, a blanket and a jacket were recovered. - t9l On 30th July 2014, Pw7 (Joram Omondi) and Kizito Steven (the victims) went to the police station and identified their properties which had been stolen on l3'h July 2014. They signed for the two laptops and two phones, and about two pieces of clothes and took them with them that day. - [10] Pw4 (D/AIP Omondo Nixon) conducted an identification parade at which Pw7 (Omondi Joram) allegedly identified the Appellant. The identification report was allowed in evidence as exhibit P4. - I l] The Appellant denied the charges, underwent a full trial, was convicted and sentenced as mentioned above. - [1 2] Dissatisfied with the decision, he appealed to this Court against both the conviction and sentence on four grounds as set out in the supplementary Memorandum of Appeal as follows: - THAT lhe Learned Trial Judge erred in law and fact when she failed to adequately appraise the prosecution evidence alongside defence evidence lhereby wrongly convicting the Appellanl on count 1. q I - 2, THAT the Learned Trial Judge erred in law and fact when she failed to odequately appraise the prosecution evidence alongside defence evidence thereby wrongly convicting the Appellant on count 2.

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- THAT the Learned Trial Judge erred in law ond facl when she sentenced the Appellanl to an excessive 20-year cuslodial sentence on each count without deducting the remand period. 3 - THAT the Learned Trial Judge erred in law and facl when she senlenced the Appellant to an e-rcessive 20-year castodial senlence on each counl with dn order that the senlence be served consecutively. 4

#### Representation:

- [13] At the hearing of the appeal, Mr. Seth Rukundo appeared for the Appellant on State Brief, while Ms. Florence Akello Owinji, Assistant Director of Public Prosecutions, appeared for the Respondent. - [14] Both parties filed written submissions as directed by the Registrar. This appeal has thus been disposed of on the basis of the written arguments. A- - [5] The respondent raised a preliminary point of law, arguing that the grounds of appeal are defective in law in that they offend rule 66 (2) ofthe Rules ofthis court. Counsel for the respondent relied on Mugerwa John vs, Uganda, Court of Appeal Criminal Appeal No. 0375 of 2020 and Sseremba Denis vs. Uganda, Court of Appeal Criminal Appeal No. 480 of 2017, for the proposition that the grounds of appeal must be precise and specific in identifuing the evidence which was not considered by the presiding judge. For this reason, counsel asked the court to strike out the lst and 2nd grounds ofappeal.

[6] Rule 66 (2) of the Court of Appeal Rules provides as follows: -

(2) The memorandum of appeal shall set forth concisely and under distinct heads numbered consecutively, without argument or narrative, the grounds of objection to the decision appealed against, specifying, in the case of a first

appeal, the points of law or fact or mixed law and fact and, in the case of a 4lPage

second appeal, the points of law, or mixed law and fact, which are alleged to have been wrongly decided, and in a third appeal the matters of law of great public or general importance wrongly decided.

[7] We accept the submissions of counsel for the Respondent that the first and second grounds were not framed in accordance with the requirements of the above Rule, and are therefore general.

We note that in his submissions, counsel for the appellant raises issues of identification of the assailants, Alibi and lack of corroboration which are not grounds that he raised in the Memorandum of Appeal. He was fishing for wrongs and wanted us to go fishing with him. This was also contrary to rule 74 (1) (a) of the Court of Appeal Rules which provides that:

> "(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 67 of these Rules..."

Counsel for the appellant did not apply to court to argue the new grounds that he introduced in his submissions. The submissions were therefore contrary to rule 74 (1) n- (a) ofthe Rules ofthis court.

Rule 66 (2) is mandatory. This has a reason behind it. The respondent must be given a chance to respond appropriately to the grounds raised by the appellant and should not be ambushed. Secondly, it enables the court to make sense ofthe appeal before it and deal with the errors in the judgment which the appellant complains about without wasting time going all over the record of appeal for wrongs that were not specified in the Memorandum of Appeal.

Grounds 1 and2, in our view do not point to any point of fact or law that was wrongly decided by the trial judge. They require us to wander around the whole judgment and the record of appeal to come up with a new judgment that is supposed to be different

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from that which was handed down by the trial judge. We therefore strike them out. (See: Oryek v Uganda (Criminal Appeal 2l of 2016) 12024) UGCA ll7).

- [8] Nonetheless, we have reviewed the evidence before the trial Court and the resultant judgment. We note that right from the outset of the judgment, the trial Judge correctly set out the ingredients of the offence which the prosecution had the burden to prove, namely: - i. There must have been theft. - lt. The theft was accompanied by violence or a threat thereof. - lll A deadly weapon was used or threatened to be used during the robbery, or death or grievous harm occurred. - The accused persons must have participated in the robbery. tv, - [9] We find that the learned judge ably considered the above ingredients of the offence, the evidence and the law and came to the right conclusion. The defence of Alibi did not arise in the evidence and was never raised at the trial. The issues of identification and corroboration were considered by the Trial judge who rightly found that the prosecution had proved its case against the a llant bevond reasonable doubt. O!

## Analysis of grounds 3 and 4.

These two grounds were jointly argued as follows.

l20l It was submitted for the appellant that the leamed trial judge failed to consider the period he had spent on remand. Further, that the order that he serves the sentences consecutively was issued in error. In reply, the respondent submitted that the sentences were legally founded, and that the period spent on remand was intended to be deducted from the 20 years sentence on each count.

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[21] It is trite law that an appellate court cannot interfere with the sentencing discretion of the trial court unless the trial court acted on some wrong principle or that it overlooked some material facts or imposed a sentence that is manifestly high or low so as to cause a miscarriage of justice. See: Kiwalabye Bernard vs. Uganda, SCCA No. 143 of 2001 in which the court held: -

"The appellate court is not to interfere with sentence imposed by a trial court which has exercised its discretion on sentence unless the exercise of the discretion is such that it results in the sentence imposed to be manifestly excessive or so low as to amount to a miscarriage of justice or where a trial court ignores to consider an important matter or circumstances which ought to be considered when passing the sentence or where the sentence imposed is wrong in principle." r,\

l22l ln sentencing the appellant, the trial judge stated as follows: -

,. The accused was charged with 2 counts of aggravated robbery in which he and others at large robbed the victims of various items and beat them up and left them for dead. The robbery of innocent motorists from Sudan to Kampala via Luwero was a rampant offence in the area. The evidence showed it was premeditated and planned by the assailants and in the present case the victims could have died from the violence inflicted on them. The accused did not look remorseful during the trial and denied all counts. His colleagues are still at large and capabte of committing similar offences. I also notice the convict is a hard-core criminal because he was arrested committing another crime. I will pass a sentence of 20 years on each count of aggravated robbery in this case to be served consecutively. The years spent on remand shall be deducted from the sentence above. The sentence commences from date of conviction. This will serve as a deterrent to any other person intending to commit such a similar offence in future."

fun - [23] Based on the above excerpt, it is not true that the trial judge failed to consider the appellant's remand period. The statement that "The years spent on remand shall **be deducted from the sentence above",** indicates that the learned Judge was alive to the legal requirement that the remand period had to be deducted from the appellant's sentence of 20 years on each count. - [24] We, however, fault the learned judge for failing to deduct the remand period and thereby failing to indicate the exact number of years which the appellant was to serve after the deduction of the remand period. - [25] This is however a curable omission which we shall remedy at the appropriate stage in this judgment. - [26] Counsel further argued that the order that the sentences be served consecutively was an error in law. On the other hand, the respondent argues that the order for consecutive service of sentence was founded in the law. - [27] We accept the submission of counsel for the Appellant on this issue, which seems to us to have been settled in Magala Ramathan vs. Uganda, SCCA No. 01 of 2014. In Magala (supra), the Supreme Court held that, "In answering the question whether the order that the sentences run consecutively was an error in law, we must again emphasize that sentencing is a matter in which a judge exercises discretion and furthermore that judicial discretion should be exercised judicially". - [28] Put another way, Judicial Officers have the discretion to determine the manner in which the sentences they issue will be served. Section 2 (2) of the Trial on Indictments Act provides that,

"When a person is convicted at one trial of two or more distinct offences, the High Court may sentence him or her for those offences to the several

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punishments prescribed for them which the court is competent to impose, those punishments, when consisting of imprisonment, to commence the one after the expiration of the other, in such order as the court may direct, unless the court directs that the punishments shall run concurrently".

- l29l ln Magala (Supra), the Supreme court upheld the Court of Appeal interpretation of the above section, stating that the general rule is for the High Court to impose consecutive sentences, and a convict will only concurrently serve sentences arising out of distinct offences if the court so directs. - [30] We must, however, underscore the need for a judge to give reasons for a decision relating to the mode in which a sentence should be served, since an accused person is entitled to know the reasons for such a decision. - [3 1] In the persuasive authority of Ndwandwe vs. Rex [20121 SZSC 39' the Supreme Court of Swaziland determined what judicious exercise of the sentencing discretion (,\. entails, stating that;

"The exercise of sentencing discretion must be a rational process in the sense that it must be based on the facts before the court and must show the purpose the sentence is meant to achieve. The Court must be conscious and deliberate in its choice of punishment and the records of the court must show the legal reasoning behind the sentence. The legal reasoning will reflect the application of particular principles and the result it is expected to achieve. The choice of applicable principles and the sentence will depend on the peculiar facts and needs ofeach case. The choice will involve a consideration of the nature and circumstances of the crime, the interest of the society and the personal circumstances of the accused, other mitigating factors and often times a selection between or application of conflicting objectives or principles of punishment".

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- [32] It is therefore expected that a judge's decision to order that sentences be served consecutively or concurrently must be supported by [easons. - [33] Be that as it may, we are alive to the sentencing principle that in ordering that sentence be served consecutively, the total sentence must be proportionate to the offence and the circumstances surrounding each case. - [34] The above principle is reflected in Guideline 8 of the Sentencing Guidelines which provides that:

(l) Where the court imposes consecutive sentences, the court shall first identify the material part of the conduct giving rise to the commission of the offence and determine the total sentence to be imposed.

(2) The total sum of the cumulative sentence shall be proportionate to the culpability of the offender. (/\ w)

- [35] In this case, when setting the number of years for each count and determining that the sentences would run consecutively, the trial judge mentioned that the sentence had to be "punitive on the one hand and deterrent on the other", as the .lustification for the sentence. - [36] Based on the established sentencing principles, the sentencing judge had the discretion to impose a consecutive rather than a concurrent sentence. She, moreover, gave reasons which included that the accused did not appear remorseful during the trial, and that he was a hard-core criminal since to his admission to the arresting officers, when he was arrested, he had been committing another robbery. - [37] We are mindful of the fact that there were two victims in this case, each of whom was affected as an individual, and therefore needed to be vindicated as such. The order that the sentence be consecutively served therefore represented a valid

vindication of each of them. We find that the leamed judge judiciously exercised her discretion when she ordered that the sentence was to be served consecutively'

- [38] However, in view of the established principles of consistency in keeping with Guideline 6(c) of the sentencing Guidelines, we note that the total number of years which the appellant will serve after deducting the remand period is outside the sentencing range for the offence of aggravated robbery which this court and the supreme court has imposed in similar cases. - [39] The Supreme Court in Aharikundira Yustina vs. Uganda, CA No. 27 of 2015 observed that "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 excess ive. Sentencing is not a mechanical process but a matter of judicial discretion therefore perfect unifurmity is hardly possible. The key word is "manifestly excessive." An appellate court will only intervene where the sentence imposed exceeds the permissible range or sentence variation. " This court therefore has a duty to re-appraise the evidence on record and the circumstances of each and come to its own conclusions and in this case, whether or not the sentences meted out by the trial court are manifestly excessive in the circumstances. To answer this question, we shall review sentences imposed by this court in similar circumstances. - [a0] In Rutabingwa James vs. Uganda' Court of Appeal Criminal Appeal No. 57 of 201l; this court confirmed a sentence of 18 years' imprisonmen for the offence A. of aggravated robbery. - [41] In Lule Akim vs Uganda, Criminal Appeal No. 274 of 2015, this court upheld a sentence of 20 years' imprisonment for aggravated robbery that had been imposed by the trial court, which they found to be neither harsh nor excessive. - [42] Also in Ntambi Robert vs Uganda, Court of Appeal Criminal Appeal No 334 of 2019, the appellant was convicted for the offences of murder and aggravated

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robbery on his own plea ofguilty. The trial court sentenced him to 20 years and l8 years' imprisonment for murder and aggravated robbery, respectively, to run concurrently. On appeal to this court, it was observed that considering the mitigating, aggravating factors and the precedents set by this court and the Supreme Court, the sentences were neither manifestly harsh nor excessive. Further that according to the sentencing range laid down in the third schedule of the Sentencing Guidelines, sentences for both offences range from 35 years' imprisonment to the death sentence, after considering the mitigating and aggravating factors. The court thus found no reason to interfere with the sentences imposed by the trial court and they were upheld.

- [43] This court in Owma Cota & 2 oth 2022, reduced the appellants' sentenc years, I I months and 28 days for the murder respectively to 1 4 years, I 1 remand period of5 years. ers vs. Uganda, CA Nos. 123, 126 & 128 of es of24 years, 1l months and 28 days and 14 offences ofaggravated robbery and attempted months and 4 days after the de1'?\* "' - [44) ln view of the above jurisprudence, we think that the total number of years that the appellant would be liable to serve after the deduction of remand period excessive. We therefore set the sentences of 20 years' imprisonment aside. We invoke section 1 1 of the Judicature Act, which gives this court the powers of the original court to sentence the appellant and sentence the appellant to l0 years' imprisonment on each count of aggravated robbery. From the sentence of 10 years on each count we deduct the period of 2 years and 1 0 months. - [a5] The Appellant shall now serve 7 years and 2 months on each count. The sentences shall be served consecutively.

## We so order.

Delivered and dated this day of

2024.

Lameya IRENE MULYAGONJA

**Justice of Appeal**

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**MARGARET TIBULYA**

**Justice of Appeal**

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**MOSES KAZIBWE KAWUMI**

**Justice of Appeal**