Mushabe v Uganda (Criminal Appeal 64 of 2020) [2024] UGCA 316 (22 November 2024)

# THE REPUBLIC OF UGANDA

## IN THE COURT OF APPEAL OF UGANDA AT KABALE

(Coram: Muzamiru Mutangula Kbeedi, Christopher Gashuabaki & Oscar John Kihika, JJA)

# CRIMINAL APPEAL No. COA-00-CR-CN-0064-2020

MUSHABE DANIEL APPELLANT

### YERSUS

UGANDA RESPONDENT

[An appeal against the conviction and sentence arising from the Judgment of the High Court of Uganda at Mbarara (Hon. Justice Duncan Gaswaga) delivered on the Sth February 2019 in Criminal Sesslon Case No. HC-0S-CR-SC- 1 02-201 7 l

## JUDGMENT OF THE COURT

### lntroduction

- r[1] The Appellant was indicted, tried and convicted of the offences of murder contrary to Sections 188 and 189 of the Penal Code Act, Cap. 120 and aggravated robbery contrary to Sections 285 and 286 (1) of the Penal Code Act, Cap. 120. He was sentenced to 45 years'imprisonment for murder and 10 years'imprisonment for aggravated robbery. c-p-n - l2l The background facts as established by the trial Court are that in the night of the 23d October 2014, two robbers invaded the home of the deceased, Kuteesa Edward, who was sleeping with his wife by kicking the door open. lt was about midnight. The deceased was wrapped in a mosquito net by the assailants and dragged out of the

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house while demanding for money. The deceased who was a cattle hader had sold some cows in the market earlier in the day.

- t3l lnitially the deceased refused to disclose where he had kept the money. The assailants tied him with a rope locally known as "emboha" around his neck and tried to strangle him. The deceased then revealed to the assailants that he had kept the money in his trousers, One of them escorted the deceased's wife inside the house and he picked the money, Ugx 1,200,000/=. After picking the money, the assailants locked the deceased's wife inside the house. They eventually brutally murdered the deceased by squeezing the piece of rope "emboha" which they had tled around his neck. His body was abandoned in the compound. The assailants also left the home with the money which they had picked from the deceased's trouser pockets. All this happened in the presence and sight of the deceased's wife, one Boonabana, who then telephoned the deceased's uncle, lvushabe Petero (PW1) at about 02:00am to inform him about his nephews death. - l4l PW1 called his two workers (the Appellant and his co-accused, a one Katonka Stephen alias lVuhoozi) to escort him to the deceased's home. He had employed them for about flve months to graze and also milk his cows - t5l Upon arrival, PW'1 found the body of the deceased lying in the compound and it was naked. Some people had gathered and were contemplating calling for Police sniffer dogs to trace the intruders. On hearing this and sensing trouble, the Appellant and his Co-accused offered themselves to be sent to call the area Local Council Chairperson but they never returned. Shortly thereafter, PW1 received a call from his wife informing him that unknown people had broken into their boys'quarters and stolen some items and further, that both the Appellant and his Co-accused were being suspected because they had also fled from the village. lt was subsequently established that the


Appellant and his Co-accused had fled by the Boda boda driven by PW2 Julius Tumwebaze.

- [1] When Tumwebaze (PW2) returned to the village after dropping the Appellant and his Co-accused at Ntuusi, he found rumours circulating that he had canied the deceased's murderers. A lady advised him to report to the Police which was already in the village, and he complied. With the assistance of PW2 and other Boda boda riders, the Appellant and his co-accused were traced, and arrested by the Police from Ssembabule District on the same day. - t6l Upon interrogation, the Appellant and his accomplice confessed to having robbed and murdered the deceased and they made Charge and Caution Statements. They were indicted with the offences of murder and aggravated robbery. Katonka Stephen admitted the charges in a Plea Bargain Session. He was convicted on both counts and sentenced to 17 years'imprisonment on both counts which were to run concunently. The Appellant on the other hand, denied the charges, undenruent a full trial, was convicted on both counts and sentenced as already stated.

# The appeal

C/A=/+

- l7l Dissatisfied, the Appellant appealed to this Court against both the conviction and sentence on the following three (3) grounds: - 1) The learned trial Judge erred in law and fact when he failed to adequately appraise the prosecution evidence alongside the Appellant's defence and thereby wrongly convicted the Appellant of murder. - 2) The learned trial Judge erred in law and fact when he failed to adequately appraise the prosecution evidence alongside the Appettant's defense evidence and thereby wrongly convicted the Appellant of aggravated robbery.

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3) The learned trial judge erred in law and fact when he ignored the fact that Katonka Stephen alias lttluhoozi (A1) who pleaded guilg to both courls was sentenced hin to 17 yearc' custodial imprisonnent to run concurrently, but in discrimination imposed on Mushabe Daniel (A2l Appellant) a harsh excessive 45 years' custodial imprisonment without deducting rem and peiod.

#### Representation

- [8] At the hearing of the appeal, l\,4r. Seth Rukundo appeared for the Appellant on State brief, while [,4s. Annet Abigaba Bolingo, Senior State Attorney, and l\.4r. Joseph Kyomuhendo, Chief State Attorney in the Oflice oF the Director of Public Prosecutions (ODPP) appeared for the Respondent. The Appellant was present in court. - tgl Both parties sought, and were granted leave to proceed by way of written submissions, which were already on the court record

#### Duty of the Court

- [10] The duty of this Court as a first appellate court is now settled. lt is to reappraise all material 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 it neither saw nor heard the witnesses testify. See Rule 30(1)(a) of the Judicature (Cour7 of Appeal) Rules; Baguma Fred Vs Uganda, Supreme Couft Criminal Appeal No. 7 of 2004; Kifumante Henry Vs Uganda Uganda, Supreme Coud Criminal Appeal No. 10 of 1997; and Pandya Vs R [1957] EA 336. - [11] We have taken cognizance of the principles above in the determination of this appeal and carefully reviewed the record in the matter, considered the submissions of both Counsel and the authorities cited and those not cited that were relevant to the appeal.

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# Resolution of the Appeal

### Grounds one and two:

- [12] TheAppellant's complaint in grounds one and two of the appealis thatthe trialCourt failed to appraise the prosecution evidence alongside the Appellant's evidence and, as a result, wrongly convicted the Appellant for the offences of murder and aggravated robbery. - [13] lt was the Appellant's contention that there was no evidence, whether real, actual, or circumstantial, to prove that the Appellant caused death of the deceased, Kuteesa Edward. That none of the witnesses testified to the effect that they saw the Appellant committing the offences herein. The deceased's wife was not produced as witness to the circumstantial evidence . PW1 was an unsatisfactory witness who contradicted himself in certain aspects. - [14] Counsel for the Appellant further argued that PW3 (DlP Kamugisha Fred)'s evidence that he recorded the Charge and Caution Statement was illegal since he recorded it in English and not in Kinyanvanda, the language known to the Appellant who is an illiterate. - [15] Lastly, the Appellant contended that the trial Court did not consider the Appellant's defence. He, therefore, urged this court to overturn the conviction. - [16] Counsel for the Respondent disagreed and contended that the learned trial Judge rightly evaluated the evidence before him. The Respondent's Counsel referred to the evidence of PWI (Petero Mushabe) which was conoborated by PW2 and squarely placed the Appellant at the scene of crime.

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- [17] As regards the illegalities and shortcomtngs raised by the Appellant about the Charge and Caution Statement of the Appellant, the Respondent submitted that the trial Judge conducted a trial within the trial in accordance with the law, evaluated both the prosecution's evidence and the Appellant's defence and found that the latter had been an untruthful witness. - [18] The Respondent urged this Court to reject grounds one and two of the appeal - [19] We have carefully considered the arguments of both parties, reviewed the trial Record and the Judgment of the trial Court. Right from the very outset, the trial Court set out the ingredients of the offence of murder which the prosecution had the burden to prove, namely: - 1) Death of the deceased (Kuteesa Edward) - 2) That the deceased was killed through an unlawful act or omission. - 3) That the person who inflicted the injuries that caused his death must have acted with malice aforethought. - 4) That the accused person participated in the crime - [20] Thetrial Court also rightly setoutthe ingredients ofthe offence of aggravated robbery which the Prosecution had to prove, namely: - '1) That there was theftof property (money). - 2) That there was violence - 3) That a deadly weapon was used or threatened to be used - 4) Participation by the accused person.

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- l21l From the submissions and the evidence before him, the trial Judge rightly found that the only ingredient that was in contention was the participation of the Appellant in the commission of the offences of murder and Aggravated robbery. He analysed the prosecution evidence in respect of the participation of the Appellant and held that it was all circumstantial. The Prosecution evidence consisted of the testimony of PW1 , PW2, and the confession of the Appellant which was recorded by PW3 and tendered into Court in Lunyankore and English Languages as exhibits PE3 and PE4 respectively. - l22l PW1 was an uncle of the deceased and lived in their neighbourhood. So, he knew the deceased. He also knew the Appellant and his Co-accused, Katonka Stephen alias Muhoozi, as his workers at the material time. Both resided in his boys quarters. PWI came to learn of the death of the deceased when he received a call from the deceased's wife at around 2:00am by which she informed him that two thugs had attacked them, killed her husband and also taken some money. He responded by calling the Appellant and his Co-accused from the boys' quarter and told them to escort him to the deceased's home. There were other persons who likewise gathered at the deceased's home in response to the alarm made by the deceased's widow following his murder. These people hatched the plan to call for the LC1 Chairman and getting the Police sniffer dogs to the scene. PW1 and his Co-accused who were present at the scene at that time volunteered to call the LC1 Chairman. Unknown to to PW1, the offer from the Appellant and Katonka was simply a ploy to escape being identified and discovered as the murderers by the Police sniffer dogs which the residents were planning to introduce to the scene. PWl saw the Appellant and Katonka leave the scene purportedly to call the LC1 Chairman, but they never returned. lnstead, they went to the home of PW1 , picked some household items,

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parked them in a bag and left the village at about 6:00am on a boda boda driven by PW2. This was clearly suspicious behaviour on their part in the circumstances.

- [23] PW2 knew PW1 as a village-mate. PW2 was a farmer, but also carried on business as a Boda boda rider. He also knew the Appellant and Katonka as PW1's workers. He testified that on the 24rh o, January 2014 at about 5:00am to 6:00am he was woken by the arrival of the Appellant and Katonka to his home. They told him that they had received a call from their home that their mother was very sick on her death bed. They requested him to drive them on his boda boda and take them to Ntuusi in Ssembabule District. PW2 said that he could not go to Ntuusi at that time. They agreed that he takes them to Kinoni. He accordingly carried them on the motorcycle and they paid him. He noticed that they had walking sticks and a bag. - [24] When PW2 returned home, he heard the rumours that l\4ushabe's workers had killed the deceased. He was advised to give information to the Police who had already arrived in the village. He explained to the Police that at the time he took the Appellant and his Co-accused on his Boda boda, he did not know that they had committed the murder. He thereafter led the Police, Crime Preventers and some Bataka (residents) to the place he had dropped them in the morning. They tracked their movements thereafter until they found them at Kyamenywa Trading Centre from where they were arrested while in a hotel. Upon searching them, Ugx 400,000/= was retrieved from them. - after the occurrence of the murder . The trial Judge observed thus [25] The trial Judge also considered the behaviour of the Appellant before, during and

"the [Appellant's] conduct as described by PWl and PW2 duing and after the unfoftunate incident was so susplc,ous and in my view, it did not amount to conduct of an innocent man who claimed not to know anylhing about the


murder of Kuteesa. When everyone in the village was gathering at the scene to see how the murderers could be caught the [Appellant] was nowhere to be seen. He was stealthily running away from the village, claiming to be going to visit a sick mother but without informing his employer. I do not believe him at all. The conduct of a suspect before, during and after commission of an offence may be a pointer to their guilt. Clearly, the conduct of the fAppellant] in fhls case was incompatible with his innocence."

- [26] The trial Judge's observations are in line with the decision of the Supreme Court in Remegious Kwanuka vs Uganda, Supreme Couft Criminal Appeal No. 41 of 1995, where it was held that the disappearance of an accused person from the area of a crime soon after the incident may provide corroboration to other evidence that he has committed the offence. This is because sudden disappearance from the area is incompatible with the innocence of such a person. - [27] The other corroborative evidence consisted of the Appellant's Charge and Caution Statement which was tendered into court as "PE3" (in Lunyankore language) and "PE4" (English translation). ln the Statement, the Appellant gave details of how he and his Co-accused hatched the plan to go and rob the money from the deceased which he had received from selling cattle during day time, how they executed the plan, their fear to be identified by the Police sniffer dogs when they were at the scene of crime with their employer (PW1), how they escaped from the village on the Boda boda driven by PW2, and how they ended up being arrested by the Police. - [28] The trial Judge also considered the defence of the Appellant by which he denied any participation in the commission of the crimes and testified that on the fateful day he spent the night in his room at PW1's home and could not therefore have been at the scene of crime at the time of commission of the offence.

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- [29] Upon evaluation of all the evidence, and the law on circumstantial evidence and alibi, the trial Judge held that the Prosecution evidence squarely put him at the scene of crime and was guilty of commission of the offences of murder and aggravated robbery as charged. - [30] Having reviewed the record of appeal and the judgment of the trial court, we are satisfied that the complaints against the decision of the trial Court are without any merits. The failure of the prosecution to produce the deceased's wife to testify was not fatal to the prosecution's case. As has been repeatedly held, proof of any fact is more about the quality and not number (quantity) of witnesses. See: Section '133 of the Evidence Act and Sewanyana Livingstone vs. Ugande SCCA IVo, 19 of 2006. The trial court having found PW1 and PW2 to be truthful and reliable, the absence of evidence from the deceased's widow was inconsequential. - I31l The Appellant also faulted the admission of the Charge and Caution Statements by the trial Court and their being relied upon to convict the Appellant. We accept the Respondent's submissions that with or without the Charge and Caution Statements, the evidence of PW1 and PW2 was sufficient to prove the Prosecution's case against the Appellant. As such, in the circumstances of this case, the Charge and Caution Statements simply reinforced the evidence of PW1 and PW2. - [32] The aforesaid notwithstanding, the Record of Appeal indicates that the Charge and Caution Statements were admitted after the trial Judge had conducted a trial within a trial and satisfied himself that they were made by the Appellant voluntarily and in accordance with the law. We have found nothing on the record to fault this finding of the trial Judge - [33] Upon admission of the Charge and Caution statements in evidence, the trial Court was entitled to consider the Statements alongside all the other evidence before it and

" i.rrr 10 l20 all the circumstances of the case before arriving at its finding that the Appellant was guilty as charged. See; Iuwamoi Vs Uganda [t96] EA 84. We are satisfied that the trial Court fully and properly discharged this duty.

[34] Accordingly, grounds one and two are dismissed

## Ground three - Severitv and leqalitv of the sentence

[35] Ground three was couched as follows:

"The learned trial iudge erred in law and fact when he ignored the fact that Katonka Stephen alias Muhoozi (A1) who pleaded guilty to both counts was sentenced him to 17 years' custodial imprisonment to run concurrently, but in discrimination imposed on Mushabe Daniel (A2/ Appellant) a harsh excessive 45 years' custodial imprisonment without deducting remand period."

- [36] From his written submissions, the Appellant's complaint about the sentence is threefold: First, the remand period was not deducted. Second, it was discriminatory in so far as Katonka Stephen was given a 17 years' imprisonment term for commission of the same of offence with the Appellant following his plea of guilty. Third, it breached the principle of consistency in sentencing. The Appellant cited the case of Susan Kigula & Others HCT-00-CR-0115 where the High Court substituted the death sentence initially imposed on the convict of murder with a 20 years' imprisonment term. - [37] The Appellant urged this Court to set aside the sentence and substitute it with a ten year imprisonment term.

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- [38] The respondent disagreed, and contended that the sentence was neither harsh nor excessive as each offence attracts a maximum sentence of death. The Respondent argued that the trial Judge followed the principles of sentencing by considering all the factors and deducting the period spent on remand. The Respondent's Counsel cited a number of decided cases to show that the sentence of 45 years' imprisonment for the offence of murder and aggravated robbery was within the range of sentences: ln Bakubye Muzamhu and Anothet Vs Uganda SCCA rVo. 056 of2015. the sentences of 40 and 30 years for the offences of murder and Aggravated Robbery were upheld by the Supreme Court. In Magero Patrick and Anothet Vs Uganda CACA No.076 of 2019,-lhis Court conflrmed a sentence of 45 years' imprisonment for the Appellants who were convicted of murder and Aggravated robbery. - l39l The Respondent prayed for dismissal of the appeal - [40] As an appellate Court, we are constrained not to interfere with a sentence imposed by the trial Court merely because we would have imposed a different sentence had we been the trial Court. We can only interfere with a sentence where it is illegal, or founded upon a wrong principle of the law, or a result of the trial Court's failure to consider a material factor, or harsh and manifestly excessive in the circumstances of the case - See: James vs R, (1950) 18 E. A. C. A. 147; Ogalo slo Owoura vs R. (1954)24 E. A. C. A. 27; Kizito Senkula vs Uganda, S. C. Crim. Appeal No. 24 of 200; Bashir Ssa/i vs Uganda, S. C. Crim. Appeal No. 40 of 2003; and Ninsiima Gilbeft vs Uganda, C. A. Crim. Appeal No. 180 of 2010. - l41l ln Ogalo s/o Owoura v R (1954) 21 EACA 270lhe Court held thus: .\\$/"

'... The principles upon which an appellate coutl will act in exercising its juisdiction to review sentences are ftmly established. The Court does not alter a sentence on the mere ground that if the members of the couft had been trying the Appellant they

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might have passed a somewhat different sentence and it would not ordinarily intefere with the discretion exercised by a trial Judge unless as was sald in James v R, (1950) 1B EACA 147, 'it is evident that the Judge has acted upon wrong principle or overlooked some material facto/'. To this we would also add a third criterion, namely, that the sentence is manifestly excesslve in view of the circumstances of the case. An appropriate sentence should be proporlionate to the offence with the gravest offences attracting the most severe penalties and lesser offences in terms of aggravation attracting /ess severe penalties. Courls have also added another principte of consistency in terms of equaltty before the law so that offences committed under similar circumsfances with similar degree of gravity should attract the same range of sentences therefore precedents of the appellate cowls are a relevant guiding actor..."

[42] During the allocutus, the Appellant's Counsel before the trial Court stated:

'He deserves not to die. He is a first offender and seems fo be remorseful. Pray for lenient sentence."

[43] The convict stated by himself that:

"l am very sorry for the family of the person I killed. lt happened but not on my wish. I beg for forgiveness from the family, God and Couft. I am begging courl now to forgive me because I have no family members, they remained in Rwanda. My relatives were poor. I am the one who was taking care of my mother and other 3 children and they were surviving on my strength. My life is not good. I pray for lenienf sentence. I did it but did not plan it. I did not expect the person to die."

[44] The learned trial Judge's sentencing Ruling and order is as follows:

## ,SENIENCE

Ihls was a very unforlunate situation where deceased /ost hls life at the hands of the accused apparently for nothing. He will never return to this wold

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and will always be mlssed by hrs relaflves like Mr. Mushabe and wife forever. Considering the mitigation advanced, the convict will be saved of a death penalty and given another chance.

I inpose a sentence of Folylive (45) years imprisonment on Count 1 and ten years imprisonment on Count ll.

ORDER: -

Eoth senlences shall run concurrently and the period of (5 years and 5 days) so far spent on remand shall be deducted when calculating the time, the senlerce ls lo expile. Right of Appeal explained."

[45] With regard to the Appellant's complaint about the failure of the trial Judge to deduct the remand period, it is apparent that such a complaint arises from Article 23(8) ofthe Constitution which provides: -

> 'Where a person ls convicled and sentenced to a term of imprisonment for an offence, any period he or she spends ln lawful custody in respect of the offence before the completion of his or her trial shall be taken into account in inposinq the tern of imDrisonment."

- [46] From the above, it is clear that the constitutional obligation to take into account the remand period is vested in the Court, and is exercisable before pronouncing the sentence. ln Tukamuhebwa David Junior & Mulodo Yubu Vs Uganda, Supreme Coufi Criminal Appeal No.59 of 2016,lhe Supreme Court held that the expression to "take into account' as prescribed by Article 23(8) of the Constitution means 'fo bear in nind or consider or be alive of the remand period before imposing <sup>a</sup> sentence". - [47] ln the instant matter, the deduction of the remand period was not deducted by the trial Court itself; the task was assigned apparently to the Prison authorities in so far as the Court stated "...the period of (5 years and 5 days) so far spenl on remand shall be

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deducted when calculating the time, the sentence is to expire." fhis was the first error as such delegation of authority is not rooted in the Constitution.

- [48] Second, the court order meant that the deduction was to be done after the sentence was imposed by the trial Court. This was yet another error. The remand period is supposed to be considered by the Sentencing Court alongside the other factors when the Court is coming up with an appropriate sentence. - [49] On account of the above, we find that the trial Court did not act in accordance with the mandatory constitutional provisions in sentencing the Appellant. - [50] We have also considered the Appellant's second complaint that the sentence of <sup>45</sup> years was discriminatory in so far as his Co-accused with whom he committed the same offences on the same day under the same circumstances was sentenced to 17 years' imprisonment upon pleading guilty. - [51] ln our view, without being furnished with the full circumstances under which the Appellant's Co-accused was convicted and sentenced, this Court lacks the requisite materials upon which to evaluate whether indeed there was discrimination in meting out the sentences or not. From the submissions of the parties, it appears that the Coaccused pleaded guilty pursuant to Plea bargain procedures. The factors considered before the parties eventually agreed upon the sentence of 17 years have not been placed before us. Second, the mandate of the trial Court in respect to sentences arising from Plea bargain procedures is limited by Rule 13 (1) of the Plea Bargain Rules, 2016 to either accepting or rejecting the Plea Bargain Agreement (PBA). The trial court does not have power to sentence an accused person outside the PBA and if it does so, that becomes sufficient ground for the appellate Court to set aside the sentence. See: Rule 12(1)(S) of the Judicature (Plea Bargain) Rules 2016 and Mujurizi Gerald Vs Uganda, Court of Appeal Criminal Appeal No. 342 of 2016

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- I52l lt has been a practice of the Courts that a plea of guilty earns a convict a favorable consideration when the Court is imposing a sentence. Accordingly, the Appellant's complaint about discrimination fails. - [53] As regards, the alleged breach of the principle of consistency, the Appellant cited the case of Susan Kiguli (Supra) where the Convict in a murder case was sentenced to 20 years' imprisonment to support his complaint that the sentence of 45 years was harsh and manifestly excessive. - [54] The obligation of the court to ensure consistence of its sentences with those of decided cases is set out under Sentencing Principle No.6(c) of the Constitution (Sentencing Guidelines for Courts of Judicature) Practice Directions, 2013 - Legal Notice No.8 of <sup>2013</sup> in the following terms:

'Every couti shall when sentencing an offendet take into account ... the need for consistence with approp ate sentencing levels and other means of dealing with offenders in respect of sinilar offences commifted in similar cicumstances.'

[55] The importance of the principle of consistency in sentencing was stated by the Supreme Court of Uganda in the case of Aharikundira yustina ys lJganda, Supreme Courtllr)! criminal Appeal No.27 of 2o15,lhus: C" -

> '.../t ls the duty of this coutt while dealing with appeals regarding sentencing fo ensure conslstency with cases that have similar facts. Conslsfency ls a vital principle of a sentencing regime. lt is deeply rooted in the rule of law and requires that laws be applied wlh equafig and without unjustifi able differentiation.'

156l The sentencing Ruling of the trial Court does not indicate what decided cases the trial Judge considered before arriving at the decision to impose the sentence of 45 years' imprisonment. But the Respondent has cited several cases to show that the contested sentence was within the range of the decided cases. In Eakubuye Muzamiru & Anor Vs

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Uganda, SCCANo.56of 20lStheAppellantswereconvictedof murderandaggravated robbery and sentenced to 40 years' imprisonment on the count of murder and 30 years on the count of aggravated robbery. The sentence was upheld by both this Court and the Supreme Court.

- 571 The Respondent also referred to the case of Magero Patrick and Gudoi Dauda Vs Uganda, CACA No. 076 of 2019 where this Court imposed a sentence of 45 years' imprisonment on the Appellants who were convicted of murder and aggravated robbery. - <sup>581</sup>We have also considered other cases not cited by the parties. In Sebufiba Sirl vs Uganda, CACA No 575 of 2005, this Court upheld a sentence of life imprisonment imposed on the appellant who was convicted of murdering the deceased using a panga. - 591 ln Abaasa Johnson & another vs. Uganda, Criminal Appeal No.33 of 2014 this Court set aside a sentence of life imprisonment imposed on the Appellants for the offence of murder and substituted it with a sentence of 40 years' imprisonment, out of which the period of 5 years spent on remand was deducted. A sentence of 35 yea/s imprisonment was thus left for the Appellant to serve. - 601 ln the case of Ssemanda Christopher and Muyingo Denis vs. Uganda, Court of Appeal Criminal Appeal No. 77 of 2010, this Court confirmed a sentence of 35 years' imprisonment for the offence of murder as it did not find the sentence to be harsh and excessive. - 611 ln Kisitu Majaidin alias Mpata Vs Uganda, Court of Appeal Criminal Appeal No.028 of 2007, lhis Court upheld a sentence of 30 years' imprisonment for murder. The Appellant had killed his mother

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- 162) ln Kyaterekera Georye Wi iam V Uganda, Court of Appeal Criminal Appeal No.773 of 2010, lhis Court confirmed the sentence of 30 years imposed by the trial Court on the Appellant who had fatally stabbed his victim on the chest. - 163) ln\_Muhwezi Bayon Vs Uganda, Court of Appeal Criminal Appeal No. 198 of 2013,this Court after reviewing numerous decisions of the Supreme Court and the Court of Appeal stated thus:

'Although the c,rcumslances of each case may ceftainly differ, this court has now established a range within which these sentences fall. The tern of inprisonment for murder of a single person ranges between 20 to 35 years imprisonment. ln exceptional circumstances the sentence may be higher or lower,"

[64] We are also been mindful of the legal principle that an appropriate sentence is a matter for the discretion of the sentencing court, and that each case presenls its own facls upon whrch a court exercises its discretion. See: Kaddu Kavule Lawrence Vs Uganda, Supreme Coud Criminal Appeal No.72 of 2018. ln Ndyabalema Fulugensio versus Uganda, CA Criminal Appeal No. ,26 of 2076 this Court stated:

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"There is a high threshold to be met for an appellate couft to intervene with the sentence handed down by a trial Judge on grounds of I being nanifestly excessive. Sertenclng is not a mechanical process, buf a matter of judicial discretion therefore peiect unifornity is hardly possible. The key word is 'manifestly excesslye'l ,An appellate coutt will only intervene where the sentence is manifestly excessive, in the circumstances. ln circumstances where the learned trial Judge appeared to only consider aggravating factors, a sentence of 30 years may be considered manifestly excesslve".

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- 651 Taking into account all the above principles and the decided cases quoted above, we are satisfied that the sentence of 45 years' imprisonment for murder was harsh and manifestly excessive in the circumstances of this case. The sentence of the trial court is accordingly set aside. Ground three therefore succeeds. - 661 We shall now proceed to sentence the Appellant afresh pursuant to Section 11 of the Judicature Act which provides as follows:

## '11. Court of Appeal to have powers of the court of original jurisdiction.

For the purpose of hearing and determining an appeal, the Cout of Appeal shall have all the powers, authority and jurisdiction vested under any written law in the couft from the exerclse of the original jurisdiction of which the appeal originally emanated'

- 671 ln our exercise of the above mandate, we have considered the mitigating factors presented before the trial Court. These were: the Appellant's family situation, being a first offender, and remorseful. Although the Appellant's age at the time of commission of the offence was not raised before the trial Court, it is nonetheless a material consideration. PF24 indicates that the Appellant was approximately 27 years of age. As such he is capable of reform. - [68] We have also considered the aggravating factors as presented before the trial Court. The deceased met his death through suffocation as a result of his neck being tied with a rope ordinarily used in that part of the country for tying the legs of a cow being milked. This was a very cruel death. The maximum sentence prescribed by the law for the offence of murder is death, while the Constitution (Sentencing Guidelines for Courts of Judicature) (Practice) Directions 2013, provide for the starting sentence for murder of 35 years. - 691 Considering both the aggravating and mitigating factors, and the decided cases as quoted hereinabove, we find a sentence of 35 years' imprisonment appropriate in the circumstances of this case. From that sentence, we hereby deduct the period the Appellant

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spent on remand of 5 years and 5 days. The Appellant shall therefore serve a term of 29 years, 1 'l months and 23 days from 05th February 2019, the date of conviction.

## t70l Disposition

- 1. The appeal partially succeeds - 2. The conviction of the Appellant for the offences of murder and aggravated robbery is hereby confirmed. - 3. The sentence of 45 years' imprisonment imposed by the High Court against the Appellant for the offence of murder is hereby set aside. - 4. The Appellant shall serve an imprisonment term of 29 years, 11 months and 23 days from 5th February 2019, the date of conviction.

We so order. Delivered and dated this . day of 2024. <sup>I</sup>r 'l\*----'9' IV\,vtlg,^-^--^ t""\* MUZAMIRU MUTANGULA KIBEEDI Justice of Appeal + CHRISTOPHER GASHffi-;;iii Justice of Appeal ,l o Justice N KIHIKA t,age 20 <sup>120</sup> A,lla^N/42/