Mukwatampola v Uganda (Criminal Appeal 66 of 2018) [2024] UGCA 118 (17 May 2024)

## THE REPUBLIC OF UGANDA

## IN THE COURT OF APPEAL OF UGANDA HOLDEN AT JINJA

(Coram: Geoffrey Kryabwire, lrluzamiru ltlutangula Kbeedi & Atlonica K. frrlugenyi, JJA)

## CRIMINAL APPEAL NO. 066 OF 2018

## MUKWATAMPOLA HARUNA NYOMBI APPELLANT VERSUS

UGANDA RESPONDENT

[Appeal from the decision of the High Court of Uganda at Jinja (Hon. Jusfice Patricia Basaza Wasswa) dated 3rd Arlarch 2016 in Criminal Session Case No. 348 of 20151

### JUDGMENT OF THE COURT

#### lntroduction

1l The Appellant was indicted and convicted of the offence of Aggravated defilement contrary to Section 129(3)(a)(a) and (b) Penal Code Act following his own plea of guilty. He was sentenced to 15 years' imprisonment.

#### Background Facts

- 2l The facts of the case as admitted by the Appellant before the trial Court are that on the 4tn day of September 2014 at Bukasero "A" village, Bukatube Sub-county in Mayuge district, the Appellant performed a sexual act on "TR", a girl aged 4 years. - 3l Pursuant to the Plea Bargain Agreement (PBA), the Appellant pleaded guilty to the offence and was sentenced to 15 years' imprisonment. - 4l The Appellant was dissatisfied with the sentence imposed by the trial Court and, with leave Court, fiied this appeal against sentence only. of t

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## Grounds of Appeal

- 5l ln the Amended Memorandum of Appeal filed in court on 17tn February 2023, the Appellant set forth two grounds of appeal, namely: - i. That the learned trial Judge erred in law and fact when she imposed a manifestly harsh and excessive [sicfl againstthe Appellant. - ii. The learned trial Judge erred in law and factwhen she sentenced the Appellant to <sup>15</sup> years' imprisonmentwithout deducting the period spenf on remand.

## Representation

- 6l At the hearing of the appeal, Mr. Daniel Mudhumbusi, learned Counsel, appeared for the Appellant on State brief; while Ms. lmmaculate Angutoko, Chief State Attorney, assisted by Ms. Barbara Kyomugisha, State Attorney, appeared for the Respondent. The Appellant was present in court. - 7l When this matter came up before us for hearing, Counsel for the Appellant sought leave of the court to appeal against sentence only and to validate lhe "Amended lrrlemorandum of appeaf' which the Appellant had filed out of time. There being no objection to the application from the Respondent, this court granted the orders sought. - 8l The parties, with leave of the Court, relied on their written submissions as their legal arguments in support of their respective cases. As such, the resolution of the appeal is based on the written submissions,

# Ap@

el Regarding ground one of the appeal, Counsel for the Appellant contended that the prosecution introduced and tendered in court a faulty PBA which shows that no translation was done. That the PBA was presented to Court after being signed and the record does not show whether the Court was involved before the agreement was reached which deviation from the provisions of rule 8 of the Plea Bargain rules , in Counsel's view, was a total r 0,

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- 101 The Appellant's counsel further argued that the appellant did not understand whatever happened in Court and that this was evident from the said agreement at page 23 of the record of appeal that the trial Judge did not sign the same. Counsel cited the case of Lwere Bosco Vs Uganda, Court of Appeal Criminal Appeal No. 531 of 2016, where this Court is stated to have held that failure to observe the procedure laid down in the rules renders the PBA a nullity. - 111 Counsel further submitted that the trial Judge did not sign the PBA to make it part of the court record and enable her to convict the Appellant, thus making it irregular and liable for being set aside as happened in the case of Baguma Vincent Vs Uganda, Court of Appeal Criminal Appeal No.097 of 2015. - 121 ln the alternative, Counsel for the Appellant argued that, supposing the trial Judge based her conviction on a plea of guilty (without plea bargain), the sentence of 15 years' imprisonment was harsh and excessive in the circumstances, Counsel cited a number of cases to show this Court's consistency in sentencing: ln the case of Ninsiima Gilbert Vs Uganda Criminal Appeal No. 180 of 2010, this Court relied on the authority of Sam Buteera Vs Uganda, Supreme Court Criminal Appeal No. 21 of 1994 where the Supreme Court upheld the sentence of 12 years for the offence of Aggravated Defilement. - 131 Furthermore, that this Court in the case of Apiku Ensiyo Vs Uganda, Criminal Appeal No. 751/2021 found that the sentencing range in offences of Aggravated Defilement was 15-18 years upon full trial. - 141 0n ground 2, Counsel for the Appellant submitted that the record indicates that the trial Court did not deduct the time spent on remand by the Appellant. That the trial Judge simply acknowledged the period spent on remand and did not subtract the said period from the sentence. Counsel cited the Supreme Court decision in Rwabugande Moses Vs Uganda, Supreme Court Criminal Appeal No.25 of 2014, where it was held that a sentence arrived at without taking into account the period spent on remand is illegal and account of the period spent on remand by Court is necessarily arithmetical. that the taking in'1.

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151 Counsel prayed that the appeal be allowed, and the sentence of 15 years'imprisonment be quashed and set aside, and a proper lesser sentence be given to the appellant.

#### Respondent's Replv

- 161 ln reply, Counsel for the Respondent objected to the Appellant's complaints about the PBA on the ground that they contravene Rule 66(2) of the Rules of this Court which requires that the Appellant specifies the points of grievance, whether of law or mixed law and fact, in the lt/emorandum of Appeal. That the Amended Memorandum of Appeal raises no ground against conviction and yet the Appellant in his arguments challenges the procedure for plea bargain. Counsel submitted that the Appellant cannot argue points which he did not raise in his memorandum of appeal, save with leave of Court in accordance with Rule 102(a) of the Rules of this Court. - 171 Without prejudice to the above, Counsel submitted that the procedure adopted by the trial Judge did not occasion any miscarriage of Justice. That the Appellant was fully represented by Counsel who at no time raised any objection to the procedure nor language used by Court. Counsel cited the case of Wesamba Adam Vs Uganda, Court of Appeal Criminal Appeal No, 101 of 2020 where this Court is stated to have held that the failure by the learned trial Judge to record that the charges were read to the Appellant did not occasion a miscarriage of justice. Counsel argued that a similar view was expressed by the Justices of the Supreme Court in Uganda Vs Guster Nsubuga and Another, Supreme Court Criminal Appeal No. 92 of 2018 in which the Court was cognizant of human imperfections and held that substantive justice requires that the anomaly pointed out in the process of plea taking be overlooked in favour of the wider cause of substantive justice. That it would be expecting too much to demand that all trials must run like clock-work, short of which they would result in nullification of the entire trial. - 18] Regarding the alleged excessiveness of the sentence, Counsel for the Respondent contended that the offence of Aggravated defilement attracts a maximum sentence of death under Section 129(4) of the Penal Code Act and that the sentence of 15 years' imprisonment is // Page 4 of <sup>22</sup>

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within the range of sentences accorded by this Court. Counsel referred to the case of Seruyange Yuda Tadeo Vs Uganda, Criminal Appeal No. 0080 of 2010 where the Appellant had been sentenced to 33 years' imprisonment by the trial Court for defiling a nine-year-old. On appeal, this Court found the sentence of 27 years' imprisonment appropriate.

- Counsel also cited the case of **Magoro Hussein Vs Uganda, Criminal Appeal No. 261 & 305** $19]$ **of 2016** where the Appellant was sentenced by the High Court to 20 years' imprisonment for Aggravated defilement of a 5-year-old victim. On appeal to this Court, it was observed that the sentence of 20 years' imprisonment is below the minimum limit of what is stipulated by the Sentencing Guidelines. Moreover, the victim in the present case was only 4 years old. - Counsel for the Respondent prayed to this Court not to interfere with discretion of the learned $20]$ trial Judge as no illegality was occasioned and all material factors were duly considered in imposing the sentence. - $21$ On ground two, Counsel for the respondent contended that there was no illegality in the sentence since the trial Judge complied with the law while passing the sentence by taking into account the time spent on remand. - Counsel concluded by praying that the appeal be disallowed, and the conviction and sentence $22]$ of the lower Court be upheld. - In the resolution of this matter, we shall start with consideration of the preliminary objections $23$ raised by the Respondent before determining the substantive grounds of appeal.

### **Objections to the Plea Bargain Agreement and procedure**

$24]$ In their submissions, Counsel for the Respondent objected to the complaints raised by the Appellant about the plea bargain agreement and procedure which preceded the Appellant's conviction on a plea of quilty. The Respondent argued that the said complaints do not arise from the Memorandum of Appeal and, as such contravene rules 66 and 102(a) of the Rules of this court. The Respondent contended that the said complaints go to the root of the conviction

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of the Appellant whereas the appeal was against the sentence only. The Respondent prayed that the Appellant be baned from raising arguments outside the Memorandum of appeal to fault the trial Judge's decision

- 251 The Appellant did not file a reply to the respondent's objection - 261 We noted that in his submissions, the Appellant faulted the manner in which the trial Court handled the procedure and agreement which preceded the Appellant's conviction on his own plea of guilty in the following aspects, namely: - a) The copy of the PBA tendered in court does not show that translation of the PBA was done. - b) The trial Judge did not indicate which language the Appellant used. - c) The PBA was presented to the trial Court after being signed and the record of appeal does not show whether the trial Court was involved before the agreement was reached. - d) The Appellant did not understand whatever happened in Court. - e) The trial Judge did not sign the PBA to make it part of the court record and a basis for the court to convict the Appellant. - 271 We agree with the submission of the Respondent that the above complaints go to the foundation of the conviction of the Appellant and are clearly outside the scope of the grounds of appeal which were set out in the Amended Memorandum of Appeal. Rule 74(a) of the Rules of this Court bars an Appellant from making arguments during the hearing of appeals by which he/she faults the decision of the trial Court on any ground not set out in the Memorandum of Appeal, except with leave of the court. The Rule is couched as follows:

#### "74. Argumenfs at hearing.

At the hearing of an appeal

(a) The appellant shall not, without leave of the court, argue any ground of appeal not specified in the memorandum of appeal or any supplementary memorandum lodged under rule 67 of these Ru/es,"

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- 281 As a general rule, an Appellate Court cannot address an issue which is raised for the first time on appeal as the lower court had no opportunity to rule on it. See: Rwabugande Moses Vs Uganda, Supreme Court Criminal Appeal No. 25 of 2014. - 291 However, one of the exceptions to the above general rule is where the question being raised for the first time raises the question of illegality. This is because a court of law cannot sanction what is illegal once brought to its attention See: Kisugu Quarries Vs The Administrator General, SCCA No.10 of 1998. - 301 ln the matter before us, the complaints raised by the Appellant, even if not pleaded in the Amended Memorandum of Appeal, bring in contention the legality of the conviction itself. lt is the Appellant's claim that the Judicature (Plea Bargain) Rules, 2016 were contravened in the process of making the PBA and convicting the Appellant as charged. We, thus, find that the dictates of justice in this particular case require that this Court resolves the said claims first, since they attack the very foundation of the conviction and sentencing of the Appellant. Fortunately, no injustice will be suffered by the Respondent since her written submissions contain an appropriate reply to the Appellant's claims, - 311 TheAppellant's complaints fall in three broad categories namely: the alleged non-involvement of the Court in the plea bargain process, the trial anomalies, and the alleged failure of the trial Judge to sign the PBA. We shall handle the complaints under those broad categories.

## Court lnvolvement in the Plea Bargain Process

- 321 The Appellant's first complaint is that the court record does not show whether the Court was involved before the PBA was reached which was a breach of the provisions of rule 8 of the Plea Bargain rules. - 33I ln response, the Respondent argued that there was no injustice occasioned. - l/ The participation of the court in the plea bargain discussions is provided by rule 8 of lhd l1 <sup>341</sup> Judicature (Plea Bargain) Rules in the following terms:

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### "8. Court participation in plea bargain.

- (1) The court mav participate in plea bargain dlscussions. - (2) The parties shall inform court of the ongoing plea bargain negotiations and shall consult the court on ifs recommendations with regard fo posslb/e sentence before the agreement is brought to court for approval and recording. - (3) Subject to sub rule (1), a judicial officer who has participated in a failed plea bargain negotiation may not preside over a trial in relation to the same case." [Emphasis added]

351 This court (Muzamiru Kibeedi, Christopher Gashirabake & Eva K. Luswata, JJA) in Arinaitwe Ronald Vs Uganda, Court of Appeal Criminal Appeal No. 191 of 2016 (Unreported) had occasion to consider at length the role of the court in plea bargain discussion as set out in rule 8 above thus:

> "Our understanding of the role of the couft in the plea bargain discussions ls fhaf lf is discretionary and not mandatory on the part of the court to pafticipate in the plea bargain drscussions ongoing between the prosecution and the accused. This is by viftue of the use of the word "may" in sub rule (1) of rule I above. As such, coutt may in its abso/ute discretion elect to participate in the plea bargaLn discussions if in ifs assessment it rs abso/utely necessary for the ends of justice, but while being mindful of the consequences of its participation as sef out in rule 8(3) of the Plea Bargain Ru/es above. As such, non-participation of the court in the plea bargain discussions, as a//eged by the appellant in the instant matter canno[ by itself, be a ground to fault the trial court.

> On the other hand, and just for the sake of completeness, lf is the accused and prosecution upon whom the law lmposes an obligation to inform court of the ongoing plea bargain negotiations and to consult the court in respect of the sentence they intend to recommend to courl. Ihrs rs by virtue of rule 8(2) of the Plea Bargain Rule above. Even here, the Rules do not sef ouf the form in which the information to, and consultation of, the court takes. And neither do the rules provide for the penalty to be suffered by the parties who omit to inform or consult the court during the plea bargain drscussions. Nonefhe/ess fhe Ru/es have inbuilt a mechanism to safeguard the parties against any injustice that might arise through, among others, the noninvolvement of the court in the plea bargain discusslons. Ihis through vesting the court with the power to reject the plea bargain agreement pursuant to Rule 13 of the Judicature (Plea Bargain) Rules."

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ffu1 / 36] The role of the court in the plea bargain discussions was summarised by this court (Elizabeth Musoke, JA; Stephen Musota, JA; & Remmy Kasule, Ag. JA) in the case of Agaba Emmanuel and OthersVs Uganda, Criminal AppealNo.139 of 2017lhus:

> "... plea bargaining creafes an agreement between the prosecutor and the accused, with allthe features of an agreement in the law of contract. The Couft plays the role of a regulator of the agreement to ensure that the agreement conforms to the needs of justice of the case. But the Courl ls nof privy to the agreement and cannot redefine it. What the court may do rs to reject a plea bargain agreement where ff is safisfed that the agreement may occasion a miscarriage of justice. (see Rule 13 (1) of the Plea Bargain Rules.)"

371 The above statements of the law are still good law, and we find no reason to depart from them. As such, the Appellant's complaints about the non-participation of the Court in the plea bargaining negotiations in the instant matter are misplaced and dismissed accordingly,

# The Trial Anomalies

- 3Bl fhe trial anomalies complained about by the Appellant are: The PBA was presented to the trial Court after being signed, the copy of the PBA tendered in court does not show that translation of the PBA was done, the trial Judge did not indicate which language the Appellant used, and the Appellant did not understand whatever happened in Court. - 391 The Respondent submitted that there is no valid basis for the Appellant's complaints as the Appellant was fully represented by Counsel who at no time raised any objection to the neither procedure nor language used by Court. And, above all, there was no miscarriage of justice. - 401 The Appellant did not cite any specific provision of the law which requires that the PBA should be presented to court before being signed by the parties. And neither have we seen any such provision in the Judicature (Plea Bargain) Rules, 2016. However, it can be inferred from the second Schedule to the Judicature (Plea Bargain) Rules, 2016, which set out the detailed court procedure for handling a trial arising out of a Plea Bargain, that indeed the PBA is expected to be signed by the parties before the court hearing. When the parties thereafter appear in court, the PBA is introduced by the State. The Defence then confirms the PBA, (,

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whereupon the court informs the accused of his or her rights in a criminal trial and the effect of a plea of guilty. Thereafter, the court establishes from the accused whether he or she voluntarily signed the agreement after it had been explained to him or her and translated to him or her in a language he or she understands. Once, the accused answers in the affirmative, he or she is invited by the court to execute a confirmation whose format is set out in the third schedule of the Judicature (Plea Bargain) Rules.

- 411 We accordingly opine that from the Judicature (Plea Bargain) Rules, the PBA is supposed to be signed by the parties before the time at which they appear before the court to present the same to the court for approval or rejection, as the court may, in its discretion determine. As such, there is no basis for the Appellant to fault the PBA in the instant matter for having been presented to the court by the parties after they had already signed the same. - 421 The last complaint under the trial complaints is that the copy of the PBA which was tendered in court does not show that there was a translation of the PBA done for the Appellant before appending his hand to it. After reviewing the PBA, we noted that whereas the Appellant, his advocate, and the Prosecution signed the PBA, the space provided on the PBA for the name and signature of the Court lnterpreter/translator is blank, The question that arises is whether in the circumstances of this case, the absence of the names and signature of the interpreter/translator from the PBA, by itself, renders it a nullity. - 431 We think not. According to section 10 of the Judicature (Plea Bargain) Rules, the requirement for the names and signature of the interpreter/translator, together with the language used for interpretation/translation, to be written on the PBA arises only where an accused person has negotiated the PBA through an interpreter. The said section is couched thus:

#### "10. Plea bargain agreementto be explained to accused person.

A plea bargain agreement shall, before being srgned by the acased, be explained to the accused person by his or her advocate or a justice of the peace in a language that the accused understands and if the accused person neootiated with the prosecution throuqh an interpreter, the interpreter shall ceftifu to the effect that the

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interpretation was accuratelv done durinq the neqotiations and execution in respect of the contents oflhe GgIeernenl." [Emphasis added]

441 Even the wording of the PBA itself does not make it mandatory for the Name and/or signature of the lnterprete/translator to appear on the PBA in all cases. The PBA itself states that the space for the lnterpreter/translator is to be utilized only "if applicable" thus :

# " I NT ERp RET ER' Sfi RA JSTA rOR',S S rA TEMEM (l F AP P Ll C AB LE)

l, having been duly sworn or having a written oath on file, certify that I truly interpreted/translated this form to the accused in ...... language (specify) and the accused stated that he or she understood the contents of the form, and then initialed and signed the form.

Name and signature of court lnterpreter/translator

Date:

451 ln the matter before us, the Appellant was represented by an advocate during the Plea Bargain negotiations with the Prosecution, The advocate's names were stated on the PBA to be "Kiza Ilzloses". Upon conclusion of the negotiations, the advocate signed on the PBA confirming thus:

> "l am the advocate of the accused person. I have reviewed this form (the PBA) with my client. I have explained each of the accused's nghfs to him/her and answered all of his or her quesfions with regard to those rights and this plea. I have also discussed the facts of the case with the accused, and explained the nature and elements of each charge, any possible defences fo fhe charges, the effect of any special allegations and enhancements, and the consequences of the plea ..."

461 We have also reviewed the court proceedings during the presentation of the PBA to court for approval in order to confirm whether the trial Court discharged its mandate to ensure that the Appellant understood the meaning of the PBA, the consequences of signing it, and also whether the Appellant understood the court proceedings . The Appellant was represented by an advocate throughout the proceedings. Nevertheless, the court did require him to confirm, by himself in person, that he did sign the PBA after its meaning and the consequences of signing had been explained to him. lt was after the Appellant answered in the affirmative that the court convicted him on the basis of his own plea of guilty. As such, even though the language used

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in the court was not indicated, the answers given by the Appellant were indicative that he understood the contents of the PBA, the consequences of entering a PBA and the court proceedings. Accordingly, the Appellant's complaints in respect of this aspect are rejected.

#### **Signing of the PBA by the Trial Court**

- $47$ It is the Appellant's claim that the trial Judge did not sign the PBA to make it part of the court record and the basis for the court to convict the Appellant which rendered the PBA a nullity. The appellant cited the decision of this Court in **Baguma Vincent Vs Uganda, Court of Appeal Criminal Appeal No. 097 of 2015** where the PBA was set aside for being unsigned. - 481 The Respondent disagreed. - We have reviewed the PBA. There is no doubt that the PBA does not bear the signature of the 49] trial Judge. Should we, on that sole account, set it aside for being void as happened in the Baguma case above? - 501 The importance of the trial Judge's signature at the end of the PBA was stated in the **Baguma case above thus:**

"The signature of the trial judge at the end of the plea bargain agreement was meant" to signify that it became part of the record of the court. By his signature the trial judge confirms that the agreement is part of the record and he has seen to it that the accused has fully understood its implications as far as his right to forgo a full trial is concerned."

$51$ In determining whether the above objective was not attained in the instant matter, it is important that the PBA is not evaluated in isolation of the record of proceedings of the trial court before and after conviction on his own plea of guilty. They are short and are reproduced below:

> "01<sup>st</sup> March 2016 01:36 p.m.

2 cho Page 12 of 22 $\mathcal{M}$

#### **State**

My Lord, Margaret Nakigudde for the State and Counsel Katenda Patience for the Accused. My Lord this case is coming for mention however I wish to inform court that both parties have signed a Plea Agreement, dated 01<sup>st</sup> March 2016.

#### **Counsel**

My Lord I have had the opportunity to explain to my client what a Plea Bargain Agreement entails and on his own free accord, he signed the Agreement.

#### **State**

My Lord I hereby tender to court the Plea Bargaining Agreement.

#### Court

Mukwatampola, the Prosecutor is tendering in court what you agreed and signed on the Plea Bargaining Agreement. Did you sign it on your free will? Do you understand what it means? You will not call any witnesses in this case? You will not be presumed as innocent.

## **Accused**

Yes I know and I signed on my free will.

## Court

You understand what that Agreement means?

# **Accused**

I know.

## Court

You will not call any witnesses, you will not be presumed as innocent.

## **Accused**

Yes I know and heard.

## Court

Mukwatampola Haruna Nyombi on 4<sup>th</sup> September 2014 at Bakasero A, Bukatube Sub county in Mayuge District you had sexual intercourse with Takwogeza Rita of 4 years contrary to section 129 (3) & (4) of the Penal Code Act. Do you understand the offence you committed?

$\bigvee \qquad \qquad \qquad \qquad \qquad \qquad \qquad \qquad \qquad \qquad \qquad \qquad \qquad \$

## Accused

Yes I am aware.

Court

What did you do the child?

## Accused

I had sexual intercourse with her.

# Court

What did you do after that?

# Accused

lwashed with soap.

# Court

Did you wash yourself orthe child?

# Accused

lwashed myself.

## Court

Did you smear anything on the child?

# Accused

Yes, Blanket.

# Court

What did you smear the child?

# Accused

I smeared her with soap.

# Court

Plea of Guilty entered?

## Sfafe

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#### Irluch obliged.

Irtly Lord the agreed facts between the Accused and the Prosecution are that on 04th September 2014 at Bukasero A Village in Bukatube Sub County, Arlayuge District, the Accused pelormed a sexual act with Twogeza Rita aged 4 years old.

#### Court

ls that true?

#### Accused

Yes ff was true.

#### Court

On his own plea of guilt, the Accused Mlukwatampola Haruna Nyombi is hereby convicted of the offense of aggravated defilement contrary to section 129 (3) & (4) (a) of the Penal Code Act."

- 521 From the above, it becomes crystal clear that when the PBA is read alongside the court proceedings, the purpose sought to be achieved by the PBA was not in any way compromised by the omission of the trial Judge to sign the contested PBA in the instant matter. To declare the PBA a nullity on the sole account of the missing signature in the circumstances where the omission has not caused any injustice or otherwise compromised the objective sought to be achieved through the judge's signature would, in our view, be contrary to the constitutional dictates under Article 126(2)(e) by which this court is required to focus on "substantive justice" in preference to "form". - 531 We reiterate the observations of the Supreme Court in Uganda Vs Guster Nsubuga and Another, Supreme Court Criminal Appeal No. 92 of 2018 to the effect that "...it would be expecting too much to demand that all trials must run like clock-work, short of which they would result in nullification of the entire trial. We do not live in a perfect world so uve have to evaluate the impact of any pafticular impefection on the entire trial."

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# Conclusion of the Preliminarv Obiections

541 Under section 34(1) of the Criminal Procedure Code Act, Cap. 1 16, for the Appellate Court to set aside a conviction, it must be satisfied that there has been a miscarriage of justice. The section is couched thus:

# "34. Powers of appellate court on appeals from convictions

- (1) The appellate court on any appeal against conviction shall allow the appeal if it thinks that the judgment should be sef aside on the ground that it is unreasonable or cannot be suppofted having regard to the evidence or that it should be sef aside on the ground of a wrong decision on any question of law if the decision has in fact caused a miscarriage of justice, or on any other ground if the court ls safisfed that there has been a miscarriage of justice, and in any other case sha// dismrss the appea| except that the court shall, notwithstanding that it is of the opinion that the point raised in the appeal might be decided in favour of the appellant, dismrss the appeal if it considers that no substantial miscarriage of justice has actually occurred." - 55] ln the instant matter, we are satisfied that there was no miscarriage of justice occasioned as <sup>a</sup> result of the errors and omissions complained of by the Appellant. ln the result, we hereby reject all the Appellant's complaints seeking to fault the PBA and the procedure which led to the conviction of the Appellant on his own plea of guilty. We shall now proceed to consider and resolve the merits of the appeal on the basis of the two grounds of appeal set out in the Memorandum of Appeal.

## Dutv as 1.t oellate Court

- 561 The two grounds of appeal as set out in the Amended Memorandum of Appeal are against sentence only. lt is now settled that for this court, as a first appellate court, to interfere with the sentence imposed by the trial Court it must be shown that. - 1) The sentence is illegal. - 2) The sentence is harsh or manifestly excessive - 3) There has been failure to exercise discretion. il,

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4t@1 - 4) The trial court acted on a wrong principle. - 5) There was failure to take into account a material factor.

See: Livingstone Kakooza versus Uganda, Supreme Court Criminal Appeal No. 17 of 1993; Rwabugande Moses Vs Uganda, Supreme Court Criminal Appeal No. 25 of 2014; Kamya Johnson Wavamuno Vs Uganda, Supreme Court Criminal Appeal No. 16 of 2000; and Kyewalabye Bernard Vs Uganda, Supreme Court Criminal Appeal No. 143 of 2001.

- 571 We shall bear in mind the above principles when resolving this appeal while, at the same time, not losing sight of the general duty of this court, as first appellate court, to re-appraise all evidence that was adduced before the trial court and come to its own conclusions of fact and law while making allowance for the fact that the court neither saw nor heard the witnesses testify. (See: Rule 30 (1)(a) of the Judicature (Court of Appeal Rules) Directions, S.l IVo. 13-10; Fredrick Zaabwe vs. Orient Bank Ltd, Supreme Court Civil Appeal No. 4 of 2006; and Kifamunte Henry vs. Uganda, Supreme Court Criminal Appeal No. 10 of 1997. - 5Bl lt is with the above principles in mind that we shall proceed to resolve the complaints raised by the Appellants in the order in which they were argued by the parties.

## Ground one - Excessiveness of the Sentence

- 59] The appellant's complaint in ground one is that the sentence of 15 years'imprisonment was harsh and manifestly excessive in the circumstances of the case. Counsel cited the fact that the appellant pleaded guilty and that the sentence breached the principle of consistency which rendered the appellant's sentence harsh and excessive in the circumstances. - 601 The respondent disagreed - This court by the trial Bosco Vs r 611 The sentence complained about was imposed by the trial court pursuant to the PBA. when dealing with complaints on appeal based on the severity of a sentence made court pursuant to a PBA freely entered by the parties held in the case of Lwere

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u

llganda, Court of Appeal Criminal Appeal No. 531 of 2016 ((Egonda-Ntende, Cheborion

Barishaki & Muzamiru hrl. Kbeedi, JJA) as follows:

"severity of the sentence as a ground of appeal cannot arise out of plea bargain proceedings because pafties negotiate and agree voluntarily. A convict cannot later change his mind on appeal faulting the trial judge whose discretion in the plea bargain proceedings rs /lmifed to confirming a sentence voluntarily initiated and agreed to by the parties to the agreement. The appellant cannot turn round and argue that the sentence so approved was harsh and excesslve for nonconsideration of mitigating factors because fhese factors are paft of the negotiation. The accused person or his counsel must labor to inform court about the ongoing plea bargain negotiations and a/so consult court on ifs recommendations especially on the possib/e sentence before the agreement is brought to court for approval and recording.

This would be the appropriate sfage in the proceedings for court to recommend to the parties to consider the mitigating factors and the period an accused person would have spent on remand.

Allowing convicts to appeal against senfences they freely and voluntarily agreed in the first place without good reason would in our view undermine the relevancy and objectives of plea bargaining in our criminaliustice system."

- 621 The above position is still a good statement of the law, and we find no reason to depart from it. - 631 The rationally for the court to hold the parties onto the sentences mutually agreed upon by the parties and set out in the PBA was emphasized by this court in the case of Arinaitwe Gerald

Vs Uganda, Criminal Appeal No. 191 of 2016 (|tluzamiru hrl. Kbeedi, Christopher Gash & Eva K. Luswata, JJA) in the following terms:

"lf the plea bargaln process is to meaningful play its critical role in our criminal justice sysfem, it is important for the courts of law to hold the parties onto the terms freely negotiated and reduced into the plea bargain agreement unless, of course, there is clear evidence of resultant miscarriage of iustice or an illegality."

64] ln any case, we are satisfied that the sentence of 15 years' imprisonment term was not out of range with the decided cases of this court in similar matters. ln Nrnsitma Gilbert Vs. Uganda Court of Appeal Criminal Appeal No. 180 of 2010, the girl defiled was 8 years old; while the appellant was of a very young age of 29 years at the time he committed the offence. The court

,rg

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reduced the sentence of 30 years'imprisonment imposed by the High Court to 15 years' imprisonment after taking into account the period of 3 years and 4 months which the appellant had spent on remand.

- 651 ln lVshemeire Denis Vs Uganda, Court of Appeal iJo. 131 of 2014 lhis courl, (Egonda-Ntende, Catherine Bamugemereire and Christopher Atladrama, JJA) found the sentence of 18 years imprisonment to be appropriate in the circumstances. The appellant in the said appeal was 30 years at the time he defiled the child aged 5 years. - 661 ln Abate Muzamil Vs llganda, Court of Appeal Criminal Appeal No.0039 of 2014 where the appellant was a neighbour and the victim aged 9 years, this court confirmed the sentence of 19 years as appropriate in the circumstances. - 671 ln all, we find that the sentence of 15 years'imprisonment imposed on the appellant by the High Court for aggravated defilement did exceed the range of sentences imposed in previous cases of aggravated defilement by this court and neither was it harsh nor manifestly excessive in the circumstance of the case. Ground one therefore fails.

## Ground two - Remand Period

- 681 The appellant's complaint in ground two is that the learned trial Judge sentenced the Appellant to 15 years' imprisonment without deducting the period spent on remand by the Appellant. The Appellant submitted that the trial Judge simply acknowledged the period spent by the Appellant on remand but did not subtract the said period from the sentence arithmetically as required by the Supreme Court case of Rwabugande ll4oses Vs Uganda (op cit) - 69] The respondent disagreed. She submitted that the judgment in the Rwabugande case having been delivered by the Supreme Court of Uganda on 03'd March 2017 was not applicable to the instant matter where the impugned sentence was imposed by the trial Court on 03'd March 2016. t/,

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70] The obligation of the court to take into account the remand period while sentencing an accused person is set out in Article 23 (8) of the Constitution of the Republic of Uganda, 1995 as follows:

> .yl::2,";:i;:l:;;'::;:;';::;:,;:':;i,tr':,i::;tr:"x#:::{i;:"li:,u before the completion of his or her trial shall be taken into account in imposing the term of imprisonment."

- 711. Article 23(8) of the Constitution is mandatory and failure to comply with it renders the sentence illegal See: Rwabugande ll4oses Vs. Uganda, (op cit). - 721 We reviewed the Record of Appeal. The appellant was sentenced on 3'd lVarch 2016. This was before the decision in Rwabugande ll4oses Vs Uganda (above) was rendered by the Supreme Court a year later - on 03rd lVarch 2017. Therefore, the principle of arithmetic deduction of the remand period prescribed by the Rwabugande case above could not apply retrospectively to the trial Court's decision which was rendered in lVarch 2016 before the Rwabugande judgment. - 731 The Supreme Court itself clarified in its subsequent decisions that the principle in the Rwabugande case applied only to sentencing decisions made after March 2017. ln Byamukama Herbert Vs Uganda, Supreme Court Criminal Appeal No. 21 of 2017 where the appellant had been convicted in December 2016, the Supreme Court when dealing with the applicability of the Rwabugande case to the appeal before it stated thus:

"For a case fo be cited as precedent, it ought to have been decided earlier before the matter at hand. The Rwabugande decision fhus does not serve that purpose in the instant appeal."

741 Similarly, in lVashimolo Paul Kibolo Vs Uganda, Supreme Court Criminal Appeal No. <sup>46</sup> of 2017 the Supreme Court held that:

> u... the decision (Rwabugande) was delivered on 3d Atlarch 2017. ln accordance with the principle of precedent, this Courl and the Courts below have to follow the position of the law from that date hence forth.' 4

> > Poge 2O of 22

tW4 /

- 751 The PBA, which formed the foundation of the impugned sentence, indicated under clause 4,2 thereof that one of the "mitigating factors" considered by the parties themselves before agreeing to recommend to the trial Court the imprisonment term of 15 years was the fact that the Appellant had been on remand for one-and-a-half years. - 761 Arising from the said PBA, the trial Court made the following sentencing order

"Takino into account these factors and the fact that he has been on remand for one and vears. I hereby sentence firlukwatampola Haruna Nyombi to 15 years' imprisonmenf. " [Emphasis added]

771 From the above, it is apparent that the trial Judge was alive to the constitutional duty of the Court to take into account the remand period when sentencing the Appellant, By stating that one of the factors taken into account while sentencing the Appellant was "the fact that he has been on remand for one and half years", the trial Judge complied with what was accepted as the meaning of article 23(B) of the Constitution at that moment in time as enunciated by the Supreme Court in several decisions rendered before lhe Rwabuqande case which include Kizito Senkula Vs. Uganda, Supreme Court Criminal Appeal No. 24 of 2001 (unreported), where the Supreme Court stated as follows:

> "As we understand the provisions of Arlicle 23 (8) of the Constitution, they mean that when a trial Court rmposes a term of imprisonment as senfence on the convicted person the Courl should take into account the period which the person spent in remand prior to his/her conviction. Taking into account does not mean an arith metical exerci se."

781 Ground two accordingly fails

## Disposition

- 1. The appeal is hereby dismissed. - 2. The sentence of 15 years'imprisonment imposed on the Appellant by the High Court for the offence of aggravated defilement is hereby upheld

791 We so order. (

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f\/l/\i/4l

1 Delivered and dated this day of 2024 GEO KIRYABWIRE Justice of Appea! MUZAMIRU MUTANGULA KIBEEDI Justice of Appeal -MONICA K. MUGE YI Justice of Appeal ( I

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\*This judgment was srgned before the judge ceased to hold that office,