Mperwa v Uganda (Criminal Appeal No. 0629 of 2015) [2024] UGCA 349 (28 June 2024)

# THE REPUBTIC OF UGANDA

# IN THE COURT OF APPEAT OF UGANDA AT MASINDI

(Corom: Buteero DCJ, Oburo ond Mulyogonjo JJA)

# CRIMINAL APPEAL NO.0629 OF 2015

MPERWA ABDU APPELLANT

## VERSUS

UGANDA RESPONDENT

(Appeolfrom the decision of the High Court of Ugonda held ot Hoimo before Hon. Mr. Justice Simon Byobokomo Mugenyi delivered on lhe 24th doy of April,20l4 in CriminolSession Cose No. 3l I of 2010)

# JUDGMENT OF COURT

## INTRODUCTION

a

o

The oppellont wos indicted with one couni of murder controry to Sections IBB ond I 89 ond three counls of ottempted murder controry to Section 2O4 of the Penol Code Act (Cop ,l20).

He pleoded noi guilty 1o lhe chorges, went through o full triol ofter which he wos found guilty on oll the four counts. He wos convicted ond sentenced to 35 yeors' imprisonment on the count of murder ond 10 yeors' imprisonment on eoch count of ottempted murder. The sentences were to run concurrently.

## BACKGROUND

The focis of the cose os con be oscertoined from the record ore thot on 20ih Augusi, 2010, the oppellonl who wos o soldier in the Ugondo Peoples' Defence Forces (UPDF) ottoched to the 59th Bottolion murdered Bedikemu ot Mbegu Villoge, Buseruko Sub-county, Hoimo Dlstrict.

The oppellont hod given UGX .l00,000/= lo Ms. Atim in return for o love offoir. The soid Ms. Atim did not foll in love with the oppellont ond refused to refund ihe money the oppellont hod given her.

The oppellont wos disoppointed ond issued threots 1o Ms. Atim. The oppellont proceeded to the ormy borrocks from where he picked o gun but did not find Ms. Atim where he hod left her. He shot ot the persons he found ot the ploce where he hod left Ms. Atim. Four people were shot of ond one died while three suffered injuries.

The oppellont wos lried ond found guilty. He wos sentenced to 35 yeors' imprisonment on the count of murder ond l0 yeors' lmprisonment on eoch of the counls of otiempted murder ond the sentences were to run concurrently.

Dissotisfied with the sentence the oppellont oppeoled to this Court on one ground:

l. Ihe leorned triol Judge erred in low ond foct when he possed o very horsh ond excessiye senlence of 35 yeors' imprisonmenl in fhe circurnsfonces.

The respondent opposed the oppeol.

#### REPRESENTATION

a

o

A1 the heoring, ihe oppellont Kosongoki. WC5 represented by Mr. Simon

The respondent wos represented by Mr. Joseph Kyomuhendo (Chief Stote Atiorney) holding brief for Ms. lmmoculole Anguloko (Chief Stote Attorney) from the Office of the Director Public Prosecuiions.

Counsel for the respective porlies filed written submissions. They opplied lo Court ond were gronted leove to odopt ond rely on their written submissions.

### APPELLANT'S SU BMISSIONS

o

o

Counsel for the oppellont submilted thot os o first oppellote Court this Court hos o duty to reconsider oll the moieriol evidence thot wos odduced before the triol Court ond come lo its own conclusions on focts ond low while moking ollowonce for the foct thot it neilher sow nor heord the witnesses.

Counsel cited Rule 30 (l ) (o) of the Judicoture (Court of Appeol Rules) Direciions which provides for the duty of the Court of Appeol in first oppeols. The Courl wos olso referred to the outhorities of Bogere & Anor vs. Ugando (S. C. Cr. App No I of 1997) reported ot [1 998] KALR l, Bogumo Fred vs Ugonda (S. C. Cr. App No.7 of 2004), Kifomunle Henry vs. Ugonda, (S. C. Cr. App No l0 of 1997) ond D. R Pondya vs R fi957lEA 336 thot illustrote the duty of o first oppellote Court.

Counsel submitted thot ihe sentence possed by the leorned triol Judge wos very horsh ond monifestly excessive.

Counsel cited the outhority of Ogolo s/o Owouro Vs. Regino (Criminol Appeol No. 175 of 1954) where the Eost Africon Court of Appeolheld thot on oppellote Court does not olter o sentence on the mere ground thot the members of the Court would hove possed o somewhot different sentence unless it is evident thoi ihe Judge octed upon some wrong principle, overlooked some moteriol focior or the sentence is monifestly excessive in view of lhe circumstonces of the cose.

Counsel referred to the mitigoting fociors roised by the oppellont in ollocutus i.e. he wos o first offender, hod spenl 3 yeors ond 8 months

in pre-triol custody, wos o young mon oged 31 yeors, morried with <sup>4</sup> children ond hod osked for forgiveness. Thot the triol Court should hove considered these foctors ond exercised more leniency in determining the oppelloni's sentence.

Counsel cited outhorities from the Supreme Courl ond lhis Court where ihe offence of murder hod been considered.

ln the cose of Godi vs. Ugonda. (S. C. Cr. App. No. 3 of 2005) the oppellont shot his wife deod ond wos sentenced to 25 yeors' imprisonmenl.

o

o

ln Simbwo Poul vs. Ugondo, (C. C. Cr. App No. 23 ol20l2) the oppellont porticipoted in o mob thot led to the deoth of the deceosed. The oppellont wos sentenced to l3 yeors' imprisonment.

lnTuhumwire Mory vs. Ugondo, (C. A. Cr. App. No.352 of 2015) lhe oppellont murdered the deceosed by cutiing them on the heod ond honds. A sentence of 25 yeors' imprisonment meted on ihe oppellont by the triol Court wos reduced io l0 yeors' imprisonment on oppeol.

ln Uwero Nsengo vs Ugondo, (Criminol Appeol No. 312 of 2013) the oppellont killed her husbcrnd by running over him wilh o cor of the gote of their home ond wos sentenced to 20 yeors' imprisonment.

Counsel proyed thot this oppeol be ollowed ond the oppellont's sentence on the counl of murder be reduced to 12 yeors' imprisonment.

Counsel furlher proyed thot the senlence for murder runs concurrently with the sentences for ottempted murder from the dote of conviction ond the period the oppellont hod spent on remond of 3 yeors ond 8 months be token into occounl in sentencing the oppelloni.

#### RESPONDENT'S SUBMISSIONS

o

O

Counsel for the respondent roised preliminory objections chollenging the compelency of this oppeol.

The first objection wos thot this oppeol being ogoinst sentence only, the oppeilont should hove sought leove of ihis Couri pursuonl to Section 132 (l )(b) of the Triol on lndictmenls Act which wos noi done.

Counsel submitted thot ihe oppellont wos sentenced on 24tn April, 20.l4 ond wos pursuont to Section 28 of the Criminol Procedure Code Act required to give noiice of his intention to oppeol within 14 doys but ihe notice of oppeol on the record of Court shows thoi it wos lodged on 3l't December,20l5. Thot the oppellont needs 1o seek leove to volidote bul the respondenl does not hove objection to such opplicotion.

Counsel submitled thot on oppellote Court only interferes with the sentence imposed by the triol Court where ii is evident thot the triol Court octed on o wrong principle or overlooked some moteriol foct or if the sentence is monifestly horsh ond excessive in view of the circumstonces of the cose.

Tlre oulhorities ol Kiwolobye Benord vs. Ugondo, (S. C. Cr. App. 143 of 2001) cnd Korrso Moses Vs. Ugondo (S. S. Sr. App. No. 23 of 2016) were cited in this regord.

Counsel cited the cose of Kyolimpo Edword vs. Ugondo, (S. C. Cr. App. l0 of l??5) where it wos helcl thot on oppropriote sentencc is o motier of discrelion of the triol Judge ond thot eoch cose presents its own focts r-rpon which o Judge exerciscs his discretion.

Counsel further ciied the cose of Komyo Johnson Woyomuno ys. Ugondo, (Criminal Appeal No. l6 of 2000) where Court held thot on

oppellote Court should not interfere with the exercise of discretion becouse the members of ihe Court would hove exercised their discretion differently.

Counselsubmitted thot the leorned triolJudge complied with the low hoving considering ihe period the oppelloni hod spent on remond before senlencing him.

Counsel ciied the cose of Kizifo Senkulo vs. Ugondo, (Criminol Appeol No. 24 0f 2001) where Court held thol toking inlo occount the period the oppellont hos spent on remond did not require on orithmetic deduction of the period o convict hod spent in pre-triol custociy. Thoi the sentence wos in complionce with the provlsions of Ariicle 23 (8) of the Constitution ond the cose low cited by counsel for the oppellont in this ospect wos noi opplicoble to this cose.

o

o

Counsel submitted thot the sentence honded down to the oppellont wos within the ronge prescribed by low ond is consisient with the sentences dispensed by this Honouroble Couri ond the Supreme Court.

Counsel cited severol outhorities to jusiify the sentences honded clowrr lo the oppellcrnt.

ln Bokubye Muzomiru vs. Ugondo, (S. C. Cr. App. No. 56 of 2015), o sentence of 40 yeors' imprisonment for murder wos nol considered horsh or excessive ond the some wos confirmed by the Supreme Court.

ln Sekowoyo Blosio vs. Ugondo, (S. C. Cr. App. No. 24 of 2014) a sentence of life imprisonmenl on eoch of ihe three counfs of murder wos confirmed by the Supreme Court.

In Sunday Gordon vs. Uganda, (C. A. Cr. App. No. 103 of 2006) this Court found no reason to interfere with a life sentence for murder as it was neither illegal nor manifestly excessive.

In the cases of Florence Abbo vs. Uganda, (C. A. Cr. App. No. 168 of 2013) where a sentence of 40 years' imprisonment for murder was upheld by this Court, Magero Patrick & Anor vs. Uganda, (C. A. Cr. App. No. 76 of 2019) where a sentence of 45 years' imprisonment for murder was upheld by this Court and **Wani Affred vs.** Uganda, C. A. Cr. App. No. 181 of 2018 where a sentence of 40 years' imprisonment for murder and attempted suicide were cited to justify the sentence imposed against the appellant by the trial Judge.

### APPELLANT'S SUBMISSIONS IN REJOINDER

It was submitted for the appellant in rejoinder that this Court has jurisdiction to grant leave to an appellant to appeal against sentence only and or extend the time within which to lodge a Notice of Appeal and to validate the Notice of Appeal filed on record.

Counsel submitted that since the respondent has no objection to leave to extend time for lodgement of the Notice of Appeal and validation of the same, the Notice of the Appeal lodged by the appellant on 31<sup>st</sup> December, 2015 be validated.

Counsel reiterated his submission that the sentence handed down to the appellant by the trial Court was excessive in the circumstances of the case.

#### RESOLUTION BY THE COURT

We shall deal with the preliminary objections that were raised by counsel for the respondent first. The first point of objection roised by counsel for the respondent is thot the oppellont's oppeol seeks io chollenge the sentence olone which would require leove of Court before the oppeol is heord.

Section 132 (l)(b) of the Triol on lndictments Act (Cop 123) provides;

## "Subjecf fo fhis Secfion-

(o)

o

o

(b) on occused person moy. with leave of the Court of Appeal, oppeol fo lhe Court ot A,ppeol ogoinsl the senfence olone imposed by the High Court, other thon o senfence fixed by law;"

The oppellont roised one ground of oppeol. The ground of oppeol is presented os follows;

"fhe leorned trial Judge erred in low ond focl when he possed o very horsh ond excessiye senfence of 35 yeors' imprsonme nt in the circumsfonces."

This oppeol cholienges the sentence olone. The oppellont in his submission in rejoinder sought the leove of Court to which the respondent, roised no objection. Leove is gronted io the oppellont to oppeol ogoinst sentence olone.

The second preliminory objeciion roised by the respondent wos thot the oppellont's Notice of Appeol wos lodged out of the time stipuloted by low.

Section 28 (l ) of lhe Crinrinol Procedure Code Act (Cop I I 6) provides;

"Every oppeol sholl be commenced by o notice in writing which shall be signed by the oppellont or sn odvocote on his or her behalf, ond sholl be lodged with the regislror within foudeen doys of fhe dofe of judgment or order trom which the oppeol rs prefered."

Section 28 (6) ol the Triol on lndictmenls Act provides;

o

o

## "The oppellofe Courl moy, for good couse shown, extend lhe periods menfioned in subsecfion (l) or (3)."

The obove provision of the low gives lhis Court Jurisdiction to extend the period within which o Notice of oppeol con be lodged.

The respondent indicoted thot theywould not oppose the opplicotion for extension of time within which the oppellonl should hove lodged his Nciice of Appeol.

It is just to hove the Notice of Appeol lodged by the oppellonl filed on 3l'r December,20l5 volidoted ond the some is hereby volidoted.

We sholl proceed to consicler the merils of ll're cr1-rpeul.

Rule 30 (l)(o) of the Judicoture (Court of Appeol Rules) Directions gives this Court the power to reopproise the evidence ond drow inferences of f oct.

The scope within which this jurisdiclion is to be exercised hos been o subject of litigotion ond decisions hove been mocje on this subject in os for os criminol oppeols ore concerned.

ln Kyolimpo Edward Vs. Ugondo. (Criminol Appeol No. I0 of 1995), it was held;

"An appropriate sentence is a matter of the discretion of the sentencing Judge. Each case presents its own fact upon which a Judge exercises his discretion. It is the practice that an appellate Court, this Court will not normally interfere with the discretion of the sentencing Judge unless the sentence is illegal or unless Court is satisfied that the sentence imposed by the trial Judge was manifestly so excessive as to amount to an injustice."

In the earlier case of Ogalo s/o Owoura Vs. R [1950]18 EACA 114, it was held:

"The principles upon which an appellate Court will act in exercising its jurisdiction to review sentences are firmly established. The Court does not alter a sentence on the mere ground that if the members of the Court had been trying the appellant they may have passed a somewhat different sentence and it will not ordinarily interfere with the discretion exercised by a trial Judge unless as was said in the James Vs. R [1950]18 EACA 114 it is evident that the Judge has acted upon some wrong principle, or overlooked some material factor. To this we would also add a third criterion, namely, that the sentence is manifestly excessive in view of the circumstances of the case."

The complaint by the appellant in this appeal is that the sentence meted unto him by the trial Judge is very harsh and excessive in the circumstances.

The maximum punishment for the offence of murder is provided for under Section 189 of the Penal Code Act (Cap 120). A person convicted of the offence of murder is liable to suffer death.

The Supreme Court and this Court have considered several appeals against sentences for the offence of murder.

ln Sundoy Gordon vs. Ugonda, C. A. Cr. App. No. 103 of 2006) this Court found no reoson to interfere with o life sentence on o chorge of murder ond found thot the sentence wos neither illegol nor monifestly EXCCSS IVE.

In Sekowoyo Blosio vs. Ugondo, (S. C. Cr. App. No. 24 of 2014) a senlence of life imprisonment on eoch of the lhree counts of murder wos confirmed by the Supreme Court.

ln Bokubye Mvzomiru vs. Ugondo, (S. C. Cr. App. No. 56 of 2015). o sentence of 40 yeors' imprisonment for murder wos not considered horsh or excessive ond ihe some wos confirmed by the Supreme Court.

o

o

ln the cose of Godi vs. oppellont shot his wife imprisonrrrent. Ugonda, (S. C. Cr. App. No. 3 of 2005) Ihe deod ond wos sentenced to 25 yeors'

In Uwero Nsengo vs Ugondo, (Criminol Appeol No.3l2 ot 2013) lhe oppelloni killed her husbond by running over him with o cor ot the gote of their home ond wos sentenced to 20 yeors' imprisonmenl.

The Sentencing (Sentencing Guidelines for Courts of Judicoture) (Proctice) (Directions), 20,l3 in the Third Schedule Port I ltem 1 provide for the senterrcing ror'\ge irr llre cose of murder ofter loking into occount the fociors oggrovoting or mitigoting ihe sentence in eoch cose lo be from 30 yeors' imprisonment to deoih.

We hove token into occount the foct thoi the oppellont wos o first offender, showed remorsefulness for his ociions ond wcs o young mon oged 31 yeors of the time he committed the offence ond wos morried with four young children.

However, ihe oppellont pre-meditoled his octions when he wolked from the scene of crime to the borrocks ond picked o gun which is o deodly weopon thot he used in the commission of the offences with which he wos chorged ond loier convicted.

The oppellont of the time of commission of the offence wos o servlng officer in the Ugondo Peoples' Defence Forces. He used o weopon he wos meont io use to protect people from horm to commit o heinous offence.

The Supreme Court hod occosion to hondle o cose with similor focis in ihe ccrse of Ogwong J Alfred vs Ugondo, Criminol Appeol No. 311997i

a

o

Ogwong J Alfred wos on officer of the ormed forces who hod been of the scene of crime prior to the commission of the offence. He went bock to his residence, picked o gun, returned to the scene of crime ond shot of people indiscriminotely. He killed l3 people ond injured l4 others. He wos convicted ond sentenced to deoth by the High Court. Bolh the Court of Appeol ond Supreme upheld the deoth sentence.

The foct thot the oppellont wos o soldier employed to protect citizens wos considered relevont by the Supreme Court.

The outhorities of Godi vs Ugondo, Simbwo Poul ys Ugondo, Tuhumwire Mory vs Uganda ond Uwero Nsengo vs Ugondo(Supro) citecl by counsel for the Appellont ore distinguishoble from the cose oi honci. None of the coses cited involved o member of the Armed Forces ond the murder ond injury of vorious persons.

The leorned lriol Judge did not senience the oppellont lo the moximum senience.

We do not find a sentence of 35 years in the circumstances illegal or out of range for the offence committed.

We find no reason to interfere with the sentence imposed by the learned trial Judge as the same was neither harsh nor excessive.

This appeal lacks merit and is dismissed.

The appellant shall continue to serve the sentence imposed by the learned trial Judge.

We so order.

DATED AT Kampala this ........... day of .....

$\mathcal{Q}$ 2024.

RICHARD BUTEERA DEPUTY CHIEF JUSTICE

**HELLEN OBURA** JUSTICE OF APPEAL

IRENE MULYAGON

JSUTICE OF APPEAL