Mwikirize v Uganda (Criminal Appeal 349 of 2014) [2023] UGCA 232 (6 September 2023)

Full Case Text

# THE REPUBLIC OF UGANDA IN THE COURT OT APPEAL OF UGANDA TA KAMPALA CRIMINAL APPEAL NO. 0349 OF 2014 (Coram: Buteera, DCJ, Mulyagonja & Mugenyi JJA)

## MWIKIRIZE WILLIAM APPELLANT VERSUS

UGANDA:::::::::!:::::::::::::::::::::::::::::::::::::::::t:::t:::::::::::::::::: RESpONDENT (An appeal against the decision of Jane Kiggundu I deliocred on gth Noaember 2012 in Kampara Criminar session Case No. 0246 of 2011)

## JUDGMENT OF COURT

## Introduction

The appellant was convicted of murder contrary to sections igg and 189of the Penal Code Act, cap 120 and sentenced to life imprisonment.

#### Background

It was alleged that on the 24th day of Febru ary 201,1at Namasuba Zone in Kampala District, the appellant murdered one Ahimbisibwe Balaam.

The facts as ascertained from the lower court record are that the appellant was the father of the deceased. That in 2007, the appellant separated from Kafusherure Lydia, (the deceased,s mother) who was at the time pregnant and expecting. On 20th February 2011, Kafusherure Lydia was admitted in hospitar for treatment and she left

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the deceased in the care of her mother at Kimuli in Mitooma District. The upon discharge; she was informed that the appellant forcefuily took her son (the deceased) to Kampala.

On 25thFebru ary 201,L, she got information that her son was dead and that the appellant was making arrangements to transport the dead body to Mitooma District for burial. That Katusherure immediately reported the matter to Mitooma police station and the appellant was arrested and detained. A post mortem examination was carried out, and it revealed that the deceased had a closed fracture to the right arm, trauma to the chest with two cracked ribs. The cause of death was stated to be blunt trauma to the right arm, chest and head strangulation.

The appellant was also medically examined and found to be of a normal mental stafus. He was indicted for the offence of murder. He denied the offence, the trial Judge found sufficient evidence to convict him. He was sentenced to imprisonment for life. Being dissatisfied with the sentence, he appealed against it in the following ground of appeal.

That the learned trial Judge erred in law and fact when she sentenced the appellant to a manifestly harsh and excessive sentence in the circumstances of the case.

### Representation

At the hearing of the appeal, Ms Suzan Wakabala represented the appellant on state Brief while Ms Ann Kabajungu Chief State Attomey represented the respondent. The appellant was present via video link from Luzira Upper Prison.

Counsel for the appellant sought leave of court to appeal against sentence only under section 132(1) (b) of the Trial on Indictments Act. Counsel for the respondent did not object and Court granted the appellant leave to do so.

## The appellant's submissions

Counsel submitted that the sentence was manifestly harsh and excessive based on the mitigating factors raised. It was counsel,s submission that the appellant was a first- time offender who pleaded for lenience in court. That he was 35 years old at the time he committed the offence, which is a material factor in determining an appropriate sentence for the convict.

Counsel further submitted on the principle of uniformity of sentences and referred to Mbunya Godfrey v uganda sccA No. 4 of 2011 and Ssekitoleko Edward v Uganda CACA No. 76 of 20.1,2 for the proposition that it is a requirement for courts to maintain consistency while sentencing in cases of a similar nafure.

Counsel further cited Tumwesigye )ustus & Another v Uganda CACA No. 2L5 of 2015 where this court reduced the sentence of

murder from 20 years to 15 years' imprisonment. She also cited John Kasimazi & 6 Others v Uganda CACA No. 167 of 2072 where the appellants were convicted of murder and sentenced to life imprisonment but on appeal; - this court reduced the sentence to 12 years' imprisonment.

she prayed that this court be pleased to reduce the sentence to 20 years' imprisonment.

## The respondent's submissions

Counsel submitted that the sentence of life imprisonment meted out to the appellant was neither harsh nor excessive. she further submitted that before sentencing the appellant the trial Judge weighed the mitigating factors against the aggravating factors and rightly exercised her discretion to impose a sentence of life imprisonment. Counsel emphasized that the maximum sentence for murder is death and the appellant was not sentenced to the maximum penalty.

counsel went on to draw the attention of court to cases where a similar sentence was imposed upon convicts. She cited Sekawoya Blasiov Uganda SCCA No. 24 of 2074 where the Supreme Court upheld the sentence of three terms of life imprisonment terms where the appellant was convicted of murdering three children under his care.

She further submitted that in Kato Kajubi v Uganda SCCA No. 173 of 2012, thc appellant was sentenced to lite inrprisonment, by the trial court and it was upheld by this court and the Supreme Court.

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She prayed that this court upholds the sentence of life imprisonment and dismisses the appeal for lack of merit.

## Decision of the Court

we have carefully cnnsidered the submissions of co,nser; - the record of appeal and authorities availed to us.

The Supreme Court in Kifamunte Henry v Uganda, SCCA No.10 of 1997held that it is the duty of the first appellate court to rehear the case on appeal by reconsidering all the materials which were before the trial court and make its own mind. Failure to do so amounts to an error of law; see also Bogere Moses and Another v Uganda, Supreme Court, Criminal Appeal No. 1 of 1997.

It is settled law that sentencing is within the discretion of the trial Judge and an appellate court will only interfere with the sentence where the trial court imposes a sentence which is manifestly excessive or so low as to amount to a miscarriage of justice or where court ignores to consider an importa.l r.atter which ought to have been considered or where the sentence is illegal. (see Kiwalabye Benard v Uganda CACA No. 143 of 2007 cited in Kawooya Joseph v Uganda CACA No. 0512 of 2014).

The Constitution (Sentencing Guidelines for Courts of Judicature (practice) Directions, No. g of 2013 outlines the general sentencing principles. Grrideline 5 (a) provides that cvcry court shall, when

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sentencing an offender take into account the gravity of the offence, including the degree of culpability of the offender. The sentencing court is also expected to take into consideration the nafure of the offence committed by the convict.

In the instant appeal, counsel for the appellant contended that the sentence of life imprisonment against the appellant was harsh and excesslve.

We have had the opportunity to reappraise the sentence passed by the learned Trial Judge in his judgment when she stated that; -

"I have considered the mitigating factors presented to court. I have also taken into account the aggravating factors particularly the parental factor and the fact that a defenseless child was forcefully removed from his mother and killed. I also noted the gruesome, merciless and inhuman way the convic! a father ended the life of his son. I will not hand down the maximum penalty but I am strongly convinced that such a father deserves to remain away from society for life. I therefore sentence him to lif e imprisonment. It is so ordered."

The Suprenre Court in Aharikundira v Usan da SCCA No. 27 of 2015 emphasised the duty of this court while dealing with appeals regarding sentencing to ensure consistency with cases that have similar facts.

This court in Alex Birvomunsi v Usanda CACA No. 454 of 20L6 restated the position in Katureebe Boaz & Anor v Usanda SCCA No. 066of 201,'1, where it was held that;

"Consistency in sentencing is neither a mitigating nor an aggravating factor, the sentence imposed lies in the discretion of the court which in exercise thereof may consider sentences imposed in other cases of a similar nature."

We however note that there can hardly be consistency in the sentences of this court where each case presents its own unique facts that are distinguishable.

In Sekawoya Blasio v Uganda SCCA No.24 of 2014; the appellant was convicted on 3 counts of murder of three children including his biological child. He was sentenced to life imprisonment on each count. This honorable court dismissed his appeal against conviction and sentence. The Supreme Court confirmed the decision that the appellant was sentenced to spend the rest of his natural life in prison.

In Magezi Gad v Uganda SCCA No 7Z of 2074, the appellant was convicted of murder and sentenced to life imprisonment. The Court of Appeal and the Supreme Court found the sentence appropriate and upheld it.

Further, in Sunday Gordon v Uganda CACA No. 103 of 2006, this honorable court saw no reason for interfering with the discretion of the

trial ]udge who imposed a life sentence against the appellant for murder.

ln Sebuliba Siraji v Uganda, CACA No 572 of 2005, the appellant was convicted on his own plea of guilty for the offence of murder and this court upheld a sentence of Life imprisonment as appropriate in the circumstances.

L:r the 3'd Schedule to the Constitution (Sentencing Guidelines), the sentencing range for murder is from 30 years' imprisonment to the death penalty, which is the maximum upon considering the mitigating and aggravating factors.

We have taken into consideration the fact that the appellant was 37 years at the time he committed the offence and that he was a first-time offender. We have however looked at the circumstances under which the crime was committed; - The victim was his son who was only 4 years old and he murdered him in a brutal manner after forcefully taking him away from his mother. Added to the fact that the appellant contributed nothing at all the upkeep and care of the child since his birth. The manner in which he took away and then killed him was diabolical, to say the least.

Having considered the earlier sentences of this Court and the Supreme Court for similar offences, we find that a sentence of life imprisonment is most appropriate in the circumstances of this case.

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The appeal therefore must fail and it is hereby dismissed. The appellant shall continue to serve the sentence that was imposed upon him by the trial court.

Dated at Kampala this 06r- day of 2023

Richard Buteera

Deputy Chief ]ustice

Irene Mulyagonja

Justice of Appeal

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Monica K. Mugenyi

fustice of Appeal