Magayi v Uganda (Criminal Appeal 469 of 2015) [2025] UGCA 76 (12 March 2025)

Full Case Text

### THE REPUBLIC OF UGANDA

## IN THE COURT OF APPEAL OF UGANDA AT MBALE

*Coram: Mulyagonja, Tibulya & Kazibwe Kawumi, JJA*

### CRIMINAL APPEAL NO. 469 OF 2015

### **BETWEEN**

MAGAYI GEOFREY ::::::::::::::::::::::::::::::::::::

### $AND$

**UGANDA:::::::::::::::::::::::::::::::::::**

# (An appeal from the decision of Kawesa Isabirye, J delivered on 19th February 2015 at Mbale in High Court Criminal Session Case No. 248 of 2013)

### **JUDGMENT OF THE COURT**

### $15$ **Introduction**

$\mathsf{S}$

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The Appellant was indicted for the offence of murder contrary to sections 188 and 189 of the Penal Code Act. After a full trial, he was convicted and sentenced to 30 years' imprisonment.

### **Background**

$20$ The facts that were accepted by the trial judge are that the appellant was an inmate at Uganda Government Prison, Ngenge. He had been convicted for obtaining goods by false pretence and was at the time serving his sentence. The deceased was a prison warder at that prison. On 28th August 2012, the warder complained about a $25$ damaged house while at the parade and he was assigned two inmates

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Irsor.

(the appellant and one Wesonga Suubi) to go and help him carry out repairs.

On that d"y, they did not complete the work and so they again signed out of the Prison the next day, 29th August 2012, to go and complete s the repairs. It was on that day that the deceased was cut on the head while they were cutting poles to be used in the repair of his house. The appellant and Wesonga run away while the deceased run towards the barracks, making an alarm. The deceased told those who were present that it was the appellant who cut him. He died as 10 he was being put on a motorcycle to be taken to the hospital.

The appellant was later arrested while in hiding and he was indicted for the offence of murder. During his trial, the prosecution presented 6 witnesses. The Appellant, in his unsworn statement denied cutting the deceased. However, the trial Judge found sufficient evidence to 1s sustain a conviction for murder and sentenced the appellant to imprisonment for 3O Years.

Dissatisfied with the sentence, the appellant now appeals on one ground as follows:

1. That the learned trial judge erred in law and fact uthen he 20 imposed anillegal, manifestly harsh and excessiue sentence of 30 gears' impisonment which occasioned a miscarriage of justice.

The respondent opposed the appeal.

# Representation

When this matter came up for hearing on 1 ltt March 2025, the appellant was represented by Mr. Nappa Geoffrey on State Brief. Mr Joseph Kyomuhendo, Chief State Attorney, held the brief for Ms. Angutoko Immaculate, Chief State Attorney, from the Office of the Director of Public Prosecutions for the respondent.

Mr. Nappa's applications to validate the memorandum of appeal filed out of time and to appeal against sentence only under section 131 (1) (b) of the Trial on Indictment Act were granted. The applications of both Counsel to have their written submissions adopted as the legal arguments in the appeal were also granted.

# Analysis and Determination

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 circumsta.nces of the case. [See Kiwalabye Bernard v Uganda Supreme Court Criminal Appeal No. 143 of 2OOl (unreported), Bashir Ssali v Uganda I2OOSI UGSC 21 and Livingstone Kakooza v Uganda lL994l UGSC L7l.l We took cognizance of these principles in disposing of this appeal. We were guided by these principles in resolving this appeal 15 20

# Submissions of Counsel

2s For the appellant, Mr. Nappa cited Aharikundira v. Uganda; 2O18 UGSC 49, and stated that the sentencing e is guided by the

Penal Code Act and the Constitutional (Sentencing Guidelines for the Courts of Judicaturef (Practice Directions) Legal Notice No. 8 of 2013. He further relied on Livingstone Kakooza v. Ugandal SCCA No. L7 of 1993 for the circumstances under which the appellate court may interfere with a sentence imposed by a trial court.

Counsel further submitted that the sentence that was imposed upon the appellant was illegal because the trial Judge did not comply with Article 23 (B) of the Constitution and Paragraph 15 of the Sentencing Guidelines. He did not arithmetically deduct the period the appellant spent on remand from the sentence, leaving the obligation to the prison authorities. To support his submission, counsel further referred to Naturinda Tamson v. Uganda, Criminal Appeal No. 13

of 2OL7.;2015 UGCA 3; John Jagenda v Uganda, Criminal Appeal No. OO1 of 2OL1 and Kawuli Robert v Uganda, CACA No. 6O of 20L3. 15

Counsel further relied on Attorney General v. Susan Kigula & 4L7 Ors [2OO9l UGSC 6, for the proposition 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 fully resolved by the courts. He submitted that this rule applies to the instant case. He prayed that this court invokes its powers under section 11 of the Judicature Act to resentence the appellant for he spent slightly over 3 years on rema.nd prior to his conviction and sentence. 20 25

Counsel went on to submit that the appellant's sentence was harsh and excessive because the court did not consider the mitigating

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factors and other pre-sentencing considerations. Counsel referred to Kifamunte Henry v. Uganda; SCCA No. 1O of L997, and prayed that this court re-evaluates and reconsiders the mitigating factors before coming to its own decision on the sentence.

s Citing Naturinda Tamson (supraf Kyalimpa Edward v. Uganda; SCCA No. 10 of 1995, Livingstone Kakooza (supraf, Mbunya Godfrey v Uganda; SCCA No. 4 of 2Ol1 and Paragraph 6(c) of the Sentencing Guidelines, counsel further submitted that the courts need to maintain consistency or uniformity in sentencing. He 10 referred to Kereta Joseph v Uganda, CACA No. 243 of 2013 where this court reduced a sentence of 25 years' imprisonment for murder to 14 years' imprisonment after considering that the Appellant was of advanced age and had shown remorse. He further referred to Suzan Kigula v. Uganda (supraf where upon mitigation the 1s appellant's sentence of death for the offence of murder was reduced to 20 years' imprisonment, and Uwera Nsenga v. Uganda, Criminal Appeal No. 312 of 2OL3, where a sentence of 20 years' imprisonment was upheld in a case where the appellant run over her husband with a car. Counsel then invited this Court to set aside the 20 appellant's sentence of 3O years imprisonment and substitute it with a lesser sentence.

In reply, Ms. Angutoko for the respondent stated that the sentence in the instant case was passed before the decision in Rwabugande v Uganda, SCCA No. 25 of 2014. She further submitted that at the time that the appellant was sentenced the sentencing regime did not require a trial court to apply the mathematical formula of deducting the exact number of years spent by an accused on remand before

imposing a sentence. He agreed that the trial judge did not mention the remand period and there was no demonstration that the same had been taken into account. He also agreed with the submission that the resultant sentence was illegal for non-compliance with

s Article 23(B).

Counsel for the respondent went on to state, that despite the illegality, the sentence of 3O years'imprisonment was appropriate in the circumstances and only prayed for this court to deduct from it the period which the appellant spent on remand prior to his 10 conviction. He submitted that a sentence of 30 years'imprisonment was not harsh as it was within the r€mge stipulated for the offence of murder.

She referred this court to Bakubye Muzamiru & Anor v Uganda, SCCA No. 56 of 2O15, where a sentence of 40 years' imprisonment 15 for murder and aggravated robbery was confirmed by the Supreme Court, Wamutabanewe Jamiru v. Uganda, SCCA No. 74 of 2OO7 where a sentence of 34 years'imprisonment was deemed appropriate for the offence of murder; Sebuliba Siraji v. Uganda, CACA No. 575 of 2OOS where this court upheld a sentence of 30 years' 20 imprisonment for the offence of murder where the appellant pleaded guilty; Sunday Gordon v Uganda, CACA No. 1O3 of 2OO6 where a sentence of life imprisonment was upheld, and Twongyire John v. Uganda, CACA No. 2OL of 2O13 where a sentence of 4O years imprisonment was considered appropriate for the offence of murder zs where the appellant murdered his own son.

Counsel prayed that this court maintains the sentence of 30 years' imprisonment and only deducts from it the 2 years, 5 months and 19 days that the appellant spent on remand prior to his conviction.

### **Consideration of the Appeal**

- It is mandatory for the sentencing court to consider the period spent $\mathsf{S}$ on remand where a term of imprisonment is imposed upon a convict. Counsel for the respondent did not waste the court's time on this point and we will not labour the point. We observed that while sentencing the appellant on 19th February 2015, the trial judge, a - page 228 of the Record, laid down the aggravating and mitigating 10 factors that were advanced in respect of the appellant. He observed that in mitigation, the appellant spent 3 years in prison. That the aggravating factors were that the appellant committed the offence when he was serving another sentence, it was against his supervisor - (warden) in the prison who trusted him to keep peace; and the 15 offence was a capital offence that attracted the maximum sentence of death. He then ruled that:

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"For those reasons the accused deserves a stringent penalty which will deter him and others from committing similar crimes, will enable him to reform and be rehabilitated. Rather than the maximum of death, given the period spent on remand and circumstances of the *case he is sentenced to 30 years' custodial sentence.*"

> $\{Emphasis\}$ $added$ }

There is therefore no doubt that the trial judge complied with the $25$ requirements of Article 23 (8) at the time that he imposed the sentence on the appellant, before the rule in **Rwabugande** (supra) was laid down by the Supreme Court on the 3rd March 2017. We say

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Tuan

so because his obligation was to demonstrate that he took the period spent on remand into account as it was held in Abelle Asuman v Uganda, Supreme Court Criminal Appeal No. 66 of 2OL6; [2OO8l UGSC 10, not to deduct it from the sentence as it was held in a

5 Rwabugande's case.

> As to whether the sentence of 30 years'imprisonment was harsh and excessive in the circumstances of this case, the obligation of this court is to consider sentences that have been imposed in cases with similar facts, as it is provided for in paragraph 6 (c) of the Sentencing

- 10 Guidelines. We note that counsel for both parties commended cases to us in which courts imposed sentences for the offence of murder. However, while counsel for the appellant cited cases where the sentences were below 30 years, counsel for the respondent cited those where sentences were 30 years'imprisonment and above' - 15 Nonetheless, in view sentences that were handed down for murder by this court and the Supreme Court that were commended to us and which we reproduced above, we are not persuaded that a sentence of imprisonment for 30 years is excessive in the circumstances of this case. The appellant who was serving a zo sentence for obtaining goods by false pretence turned against the prison warder and cut him with a panga in cold blood and then fled. He was only re-arrested later on. The offence was premeditated for the appellant and the other prisoner had been going out with the warder for two days and it was on the 2"d day that he struck' - zs In the circumstances, we find that the appeal had no merit and we uphold the sentence that was imposed by the trial Judge. The appeal

is dismissed and the appellant shall continue to serve the sentence of 30 years' imprisonment imposed on him by the trial court.

signed and delivered at Mbale this 12th day of March 2025.

r J Irene 4- )

JUSTICE OF APPEAL

Moses K;azibwe Kawumi JUSTICE OF APPEAL