Ndagano and Another v Uganda (Criminal Appeal 203 of 2012; Criminal Appeal 5 of 2018) [2020] UGCA 2137 (18 February 2020)

Full Case Text

## 5 THE REPUBLIC OF UGANDA

#### IN THE COURT OF APPEAL OF UGANDA AT KAMPALA

#### CRIMINAL APPEAL NO. 203 OF 2072 & 05 OF 2O1B

# 1. NDAGANO FRED 2. SERWADASTEPHEN APPELLANTS 10 VERSUS UGANDA RESPONDENT (Appeol from the judgment, conviction and sentence of the High Court of lJganda at lhmpala before Ilon. Lady Justice Monica K. Mugyenyi dated 20th luly, 2012 in Criminal Case No. 072 of 2012.) 15 CORAM: Hon. Mr, f ustice Kenneth Kakuru, fA

Hon. Mr. Justice Christopher Madrama, f A

Hon. Mr. Justice F. M. S Egonda -Ntende, fA

## IUDGMENT OF THE COURT

20 toSections lBBand lB9ofthe Penal CodcAct(CAPl20JinHighCourtCriminal Case The appellants on 2Oth July,20L2 were convicted of the offence of murder contrary

5 No. 072 of 2012 by Hon. Lady Justice Monica K. Mugenyi and were sentenced to 40 years and 35 years imprisonment respectively. o

The appellants with leave of this court now appeal against their respective sentences only, on the following grounds;-

1. The learned trial Judge erred in law ond factwhen she sentenced the appellants to a period of 40 years (A1) and 35 years (AZ) imprisonment respectively which was illegal, manifestly harsh and excessive in the circumstances thus occosioned afailure ofjustice.

#### Representation

When this appeal came up for hearing learned Counsel Mr. Innocent Wanambugo appeared for the appellants while Mr. Peter Mugislra State Attorney appeared for the respondent.

# Appellant's case

Mr. Wanambugo submitted that, the learned trial Judge erred when she failed to take into account the entire pre-trial period the appellants spent in custody. He argued that, the appellants had spent 1 year, 1 month and 14 days on remand however the learned trial Judge only took into account a period of L year and as such the sentences passed were illegal.

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5 In the alternative, Counsel submitted that a sentences of 40 years in respect of the 1\$ appellant and 35 years imprisonment in respect of the 2na appellant were harsh and manifestly excessive in the circumstances of this case.

He asked Court to reduce the sentences taking into consideration the mitigating factors in favour of the appellants as well as the principle of uniformity and 10 consistency in sentencing which requires that offenders convicted of the same offence in similar circumstances be given uniform sentences.

# Respondent's reply

Mr. Mugisha opposed the appeal and supported the sentences. Counsel argued that, the learned )udge before imposing the sentences considered all the mitigating and 15 aggravating factors and imposed appropriate sentences in the circumstances of this case, Counsel contended that, taking into account the period spent on remand doesn't require arithmetical deductions and as such the sentences passed were lcgal.

He further argued thag the sentences imposed by the learned trial were neither 20 harsh nor manifestly excessive in the circumstances of the case. He asked Court to uphold the sentences imposed by the learned trial )udge.

## Resolution of Court

We have carefully listencd to both Counsel. We have also pcrused the Court record and the authoritics cited to us and those that were not cited.

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Ih,

while this is an appeal against sentence only, it is nevertheless incumbent on this court, as a first appellate court, pursuant to the provisio ns of Rule 30ofthe Rules of O this court to appraise the evidence on record, if only to appreciate the circumstance under which the offence was committed. It is this, that will inform this court's findings on whether, or not, to fault the trial court over its imposition of the sentences against which the appellants have now appealed. See: Bogere Moses and another vs Uganda, Supreme Court Criminal Appeal No. L of 1997 and Kifamunte Henry vs Uganda, Supreme Court Criminal Appeal No. 10 of 1997 5 10

As a first appellate Court, we can only interfere with the trial fudge's decision on sentence in limited instances.'l'he Supreme Court has laid down the principles that 15 should govern our exercise in that regard.

ln Kiwalabye Bernard Vs Uganda, Supreme Court Criminal Appeal No. 143 of2001, the Court spelt out thc'plinciples as follows: -

"The appellate Court is not to interfere with the sentence imposed by the trial Court which has exercised its discretion on sentence, unless the exercise of the 20 discretion is such that it results in the sentence imposed to be manifestly excessive or so low as to amount to a ntiscarriage of justice, or where u trial Court ignores to consider an important matter or circumstances which ought to be considered while passing the sentence, or where the sentence imposed is wrong in principle."

-f-,1

5 see also: Kyalimpa Edward vs lJganda, supreme court criminal Appeal No. 10 of 1.995, Ogalo s/o Owoura Vs R. (1954) 21 E. A. C. A. 126, R. Vs Mohamedali Jamal (1948) 15E. A. C. A. 726 and, Livingstone Kakooza vs uganda, supreme court criminat Appeat No. 17 of 1993,

The court may not interfere with the sentence imposed by a trial court simply

because it would have imposed a different sentence had it been the trial court. see: Ogalo s/o Owoura Vs Republic [1954] 24 EA CA 220. 10

The appellants were convicted of murder, the maximum sentence of which is death. The learned trial Judge who listened to the witness and convicted the appellants did not impose the death penalty, instead she sentenced them to 40 years and 35 years imprisonment respectively. She considered aggravating factors specifically the way

in which they killed the deceased.

The appellants killed the deceased in a very brutal and inhuman manner, they cut his neck deeply with a machete and later buried him in a shallow grave.

we note that, the learned triat Judge also took into account mitigating factors in favour of the appellants, which were that, the appellants were both first offenders, they were relatively young aged 27 years and 37 years respectively.

Although the learned trail Judge did carefully evaluate the evidence before her relating to the aggravating and mitigating factors, we find with all due respect that

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- 5 ln Akbar Hussein Godi Vs Uganda, Supreme Court Criminal Appeal No.03 of 2013, the appellant killed his own wife, he was convicted of the offence of murder and O sentenced to 25 years imprisonment. On appeal, this Court upheld the sentencc. On further appeal, the Supreme Court, confirmed and maintained the sentence of 25 years imprisonment - 10 ln Rwabugande Moses Vs Ugonda, Supreme Court Criminal Appeal No. 25 of 2014 (unreported), the appellant was convicted of the offence of murder and sentenced to 35 years inrprisonment. On appeal, this Court upheld the sentence. On further appeal the Supreme Court reduced tlle sentence to 21 years imprisonment taking into account that he was a first offender and was relativcly young - 15 ln Bandebaho Benon Vs Uganda Court of Appeal Criminal Appeal No. 319 of 2014, lhe appellant murdered his wif-e in a brutal nlanner, this Court reduced a sentence of 35 years imprisonment to 30 years inrprisonment.

In Opio Daniel Vs Uganda Court ofAppeal Criminal Appeal 0032 of2011, the appellant was convicted of the offerrce rnurder of his own wife and sentenced 25 ycars 20 inrprisonmcnt. This Court upheld the sentc.nce to 25 years imprisonment,

Taking into account the gravity of the offence, and the sentencing range established by this Court and the Supreme Court, and the fact that the appellant had spent 1 year, 2 months and 17 days on pre-tl'ial detention, we consider a sentences 24 ycars imprisonment in respect of the 1.t appellant and 22 years intprisonment in respcct

tl',

5 she failed to take into account the entire pre-trial period the appellants spent in O custody.

The Judge, while passing the sentence upon the appellants stated as follows;-

"l have corefully listened to both counsel as well as the convicts in allocutus.

Ifirst take into account the one year spent on remand as I consider a proper 10 sentence."

We note that, Counsel for the appellants submitted that the appellants had been on remand for 1 year, 1 month and 14 days. However upon clear scrutiny ofthe record we observe that the appellants were taken into custody on 3.d May, 2011 as testified by PW5 AIP Eweru f ohn Michael who was attached to Buwama Police station. They 15 were convicted on 20tr, luly,201.2 therefore the entire remand period was lyear,2 months and 17 days. We note that the learned trial Judge took into account only 1 year and ignored the 2 months and 17 days. This error rendered the sentences illegal and we find so. We accordingly set aside the sentences of 40 years and 35 years imprisonment on that account alone.

)n We now invoke the powers of this Court under Section 11 of the Judicature Act (CAP 13) which permits us to exercise the powers of the trial Court, while hearing an appeal to impose an appropriate sentence.

- 5 of the 2nd imprisonment will meet the ends of iustice from which we now deduct the O remand period of ! year 2 months and 17 days. We accordingly order that, the l..t appellant is to serve a period of 22 years,9 months and 13 days and the 2nd appellant will serve a period of 20 years, 9 months and 13 days in prison. Their respective sentences will run from 2Oth luly 2012, the date of conviction. - 10 We so order.

Dated at Kampala this day of ?020. KK

Kenneth Kakuru

1!., IUSTICE OF APPEAL

F. M. S Egonda-Ntende

IUSTICE OF APPEAL

Christopher Madrama

JUSTICE OF APPEAL