Marunda v Uganda (Criminal Appeal 121 of 2019) [2024] UGCA 47 (23 February 2024)

Full Case Text

### 5 THE REPUBLIC OF UGANDA

# IN THE COURT OF APPEAL OF UGANDA AT MBALE

# CRIMINAL APPEAL NO.121 OF 2OI9

(Coram: Cheborioru Barishaki, Christopher Gashirabake arud Oscar John Kihika, JJA)

10 MARUNDA BEN APPELLANT

#### VERSUS

UGANDA :::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::RESPONDENT (Appeal from the decision of Hon. Ladg Justice Henietta Wolayo in the High Court of Uganda at Moroto dated 29th Jula, 2016 in Criminal Session Case No.45 of 2015)

### JUDGMENT OF THE COURT

# Introduction

This is an appeal from the decision of Henrietta Wolayo, J, in High Court Criminal Session Case No. 45 of 2015 in which the Appellant was convicted on two accounts of the offenses of murder contrary to sections 188 and 189 of the Penal Code Act and aggravated robbery contrary to sections 285 and 286{2) of the same Act. He was sentenced to 37 years and 4 months' imprisonment, on each account to run concurrently.

### Background

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- 5 On the 25th day of March 2OLl, the Appellant hired the deceased, a Boda Boda rider operating from Camp swahilli in Moroto Town to take him to Lokiriama in Kenya. The Appellant was in the company of another person. The three set off together abode the deceased's motorcycle (bodaboda). When they reached Nakirolo, the appellant who was armed with a panga cut the deceased several times on the neck, chest, left jaw, and lower limbs. The deceased fell off the motorcycle onto the road in a pool of blood, where he died. The Appellant pulled the deceased off the road and in the process stained the motorcycle. The appellant escaped with the deceased's motorcycle and Nokia phone to Kenya leaving the deceased in a pool of blood. The Appellant was later arrested from Kenya for riding suspiciously. He was then forwarded to Moroto Central Police station where the deceased's mother had reported a case of disappearance of her son. The Appellant was tried, convicted, and sentenced to 37 years and 4 months' imprisonment for each count to run concurrently. 10 15 - The Appellant now appeals against the sentence only having obtained leave of this Court to do so. The Sole ground of appeal is set out as follows; 20

That the learned trial Judge erred in laut and fact uhen he meted out a manifestlg harsh and excessiue sentence of 37 gears and 4 months for both counts of murder and aggrauated robbery and the sa;me u)ere to rttn concurrentlg without taking into account the mitigating factors.

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# Representation

5 At the hearing of the appeal, Ms. Faith Luchivya appeared for the Appellant on state brief while Ms. Fatinah Nakafeero, Chief State Attorney appeared for the Respondent.

# Submissions of Counsel

- Counsel for the Appellant submitted that the learned trial Judge meted out a manifestly harsh and excessive sentence of 37 years and 4 months without taking into account the mitigating factors. She further submitted that in sentencing the Appellant, the learned trial Judge only stated on page 43 of the record of appeal that the accused being a young man was a mitigating 10 - factor. He relied on Kutalijuka V Uganda, Criminal Appeo.l No.532 of 2073, where this Court held that it was prudent to consider all the mitigating factors while sentencing. He prayed that this Court reduce the sentence so that the principle of consistency in sentencing is maintained. 15

In reply, Counsel for the Respondent submitted that in arriving at the sentence of 37 years and 4 months imprisonment, the learned trial Judge had a comprehensive consideration of both the mitigating factors and the aggravating factors, including the Appellant's youthful age, being a first offender, and the remand period since November 2013. Further, the aggravating factors were the degree of injuries, the part of the body inflicted, how the injuries were inflicted, the degree of force used, planned and meditated killing, and the gruesome circumstances under which the offense was committed. He relied on . Karisa Moses V Uganda, SCCA No.23 of 2016 20 25

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5 in which it was held that an appropriate sentence is a matter for the discretion of the sentencing Judge.

Counsel further submitted that murder attracts the maximum penalty of death under section 189 of the Penal Code Act and the 3rd schedule of the Constitution (Sentencing Guidelines for Courts of Judicature) (Practice) Directions, 2013. Counsel added that the sentence of 37 years meted out to the Appellant was neither harsh nor excessive. He relied on Befeho lddi V Uganda, SCCA No.75 of 2077, where the Supreme Court upheld a sentence of 3O years imprisonment for an Appellant who had murdered his girlfriend by stabbing. Counsel prayed that this Court uphold the sentence of 37 years and 4 months imposed on the Appellant.

# Court's decision

We have carefully perused the Court record and considered the submissions of both Counsel and the authorities relied upon.

This being a first appellate Court, we must review and re-evaluate the evidence before the trial Court by subjecting it to fresh scrutiny, drawing inferences, and reaching our conclusion bearing in mind that this Court did not have the opportunity to hear and observe the witnesses testify as the learned trial Judge did. See RuIe 3O(1) of the Rules of this Court and Bogere Moses V Uganda, Supreme Court Criminal Appeal No.7 of 7997. 20

The principles upon which an appellate Court may interfere with a sentence of the trial Judge were stated by the Supreme Court rn Kiutalabge Bentard V Uganda, Criminal Appeal No.143 of 2OO7 (unreported) as follows: 25

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5 "The appellate Court is not to interfere with the sentence imposed bg a tial Court ultere that trial Court has exercised its discretion on sentence unless tLrc exercise of that discretion is such that it results in the sentence imposed to be marifestlg excessiue or so lou as to amount to a miscarriage of justice or tuhere tLrc trial Court ignores to corusider an important matter or ciranmstance which ought to be corusidered while passing sentene or tuhere the sentence imposed is urong in pinciple."

It was submitted for the Appellant that the sentence of 37 years and 4 months for the offenses of murder and aggravated robbery imposed on the Appellant was manifestly harsh and excessive and should be reduced by this Court.

While sentencing the Appellant, the learned trial Judge stated as follows; 15

> "As submitted by the state, the deceased was a uulnerable young man uslto horuestlg belieued that tlrc accttsed person u)as a genuine passenger onlg to be betraged and killed. The community impact statements show that the community seeks protection of the boda industry from criminal elements.

> The family suffered the loss o/ tlrcir Aoung son. That the accused is a Aoung man is a mitigating factor. The appropriate sentence is 40 gears imprisonment on each count. As the accused person has been on remand since Nouember 2013, lrc is sentenced to 37 Aears and four months impisonment on each count.

Sentence to run coruarrently.

Right of appeal explained.

5 All exhibits to the returned to the family of the deceased (SIC)"

Counsel for the Appellant did not submit that the sentences imposed on the Appellant were illegal or that when sentencing, the learned trial Judge omitted to consider any mitigating factor submitted in favor of the Appellant to justify this Court to interfere with the sentences. The learned trial Judge noted that

the Appellant was a young man and also noted that the Appellant had been on remand since November 2013. 10

We have considered the range of sentences in cases of similar nature to determine whether the sentence was harsh or excessive. In the case of Sekamatte Charles V Uganda, Court of Appeal Criminal Appeal No.67

- of 2013, this Court upheld a sentence of 32 years imprisonment for the offense of murder. In the case of Kgaterekera George Williann V Uganda, Court of Appeal Criminal Appeal No. O773 of 2O7O, the Appellant was convicted of murder and sentenced to 3O years' imprisonment. On appeal, this Court upheld the sentence of 30 years. 15 - Regarding aggravated robbery, this Court in the case of Aramanthan .f,fassan and Another V Ugand.a, Court of Appeal Criminal Appeal No.7 7 5 of 2O 1 5 (unreported) maintained the sentenced to 20 years imprisonment for aggravated robbery, where the in the course of stealing the victim's motorcycle, the appellants killed the victim using an iron bar. 20 - Given the nature of the sentences passed in previous murder and aggravated robbery cases, we find that a sentence of 37 years and 4 months imposed on the Appellant for the offenses of murder and aggravated robbery was neither harsh nor excessive 25

In conclusion, and for the reasons stated above, we find no merit in this $\mathsf{S}$ Appeal, and the same is dismissed. The sentence of 37 years and 4 months imposed on the Appellant for offenses of murder and aggravated robbery is hereby maintained. The said sentence shall run concurrently.

We so order $\frac{1}{26}$ day of Exp 2023 Dated in Mbale this ...... 10

Cheborion Barishaki

JUSTICE OF APPEAL

stopher Gashirabake

JUSTICE OF APPEAL

**JUSTICE OF APPEAL**