Ngabirano v Uganda (Criminal Appeal 469 of 2017) [2025] UGCA 90 (28 March 2025)

#### THE REEPUBLIC OF UGANDA

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

### CRIMINAL APPEAL No. 0469 of 2017

(Coram: Kibeedi, Gashirabake, Kihika, JJA)

NGABIRANO AMBROSE ::::::::::::::::::::::::::::::::::::

#### **VERSUS**

**UGANDA :::::::::::::::::::::::::::::::::::** (Appeal from Conviction and sentence of the High Court of Uganda at Rukungiri before Hon. Justice Micheal Elubu dated 03<sup>rd</sup> June, $2015)$

### Introduction

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[1] The appellant was indicted and convicted of murder contrary to $\mathcal{L}$ sections 188 and 189 of the Penal Code Act Cap 120, he was sentenced to 15 years imprisonment.

### **Background**

[2] The facts as ascertained from the record are that the deceased **KYOMUHENDO PAMELA** was a wife to the appellant, both of whom were residents of Kigoyi Cell, Nyakishenyi Sub-County in Rukungiri District. The deceased and the appellant had a long-standing domestic conflict, whereby the appellant suspected the deceased to having an extra-marital affair with other men. The two have been used to quarrel quite often. In due course, the deceased acquired a new mobile phone which the appellant further suspected the same to have been bought for her by men unknown to him.

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- [3] On the 13th day of March, 2015 the appellant in a rage of anger wrestled down his wife, held her tightly and cut her neck using a panga inside his house in the presence of the Appellant's father a one ZIKABIIKA AUGUSTII{E and immediately fled the scene of crime leaving behind the panga. The appellant's father then reported the matter to Rukungiri Police Station upon which the accused was arrested and subsequently charged. - [a] The appellant was tried and convicted of murder. He was sentenced to 1S(fifteen) years imprisonment. Being dissatisfied with the decision, the Appellant appealed against both conviction and sentence on two grounds.

# [5] Grounds ofappeal

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- 1. The learned trial judge erred in law and in fact when he convicted and sentenced the Appellant on a charge of murder after he had changed his plea of guilty and occasioned <sup>a</sup> miscarriage of justice. - 2. The learned trial judge erred in law and fact when he irnposed on the Appellant a sentence of 15 years' imprisonment rrhich was manifestly harsh and excessive and this occasioned <sup>a</sup> miscarriage of justice.

### Representation

[6] At the hearing of the Appeal, the Appellant was repr ented by Mr. Felix Bakanyebonera, while the Respondent was represented by Ms. Fatinah Nakafeero Chief State Attorney from Director Public Prosecution.

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The Appellant's counsel prayed for validation of the Notice of Appeal that was filed out of time. The court validated the Notice of Appeal. Cor.rnsel for the Appellant also sought leave to substitute ground No. I of the memorandum of appeal. He prayed that Ground 1 be amended to read as follows;

nThe learned trtal Judge erred ln law and tn tact uhen he convlcted. the Appellant ulthout ffrst ascertalnlng that the Appellant had clearlg understood the charge and the parAlculars thereot and thls occasloned a mlscorrlage of Justlce.'

Leave to substitute ground 1 was accordingly granted.

Both Counsel proceeded by way of written submissions which have been considered in the resolution ofthe appeal .

# Consideration of the Appeal

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[7] This being a first appeal, it must be recalled that the duty of a first appellate court is to re-evaluate the evidence, weighing conflicting evidence, and reach its own conclusion on the evidence, bearing in mind that it did not see the witnesses testify. (See Pandya v R [1957] EA p.336 and Kifamunte v Uganda, Supreme Court Criminal Appeal No. 1O of 1997 and COA Crlminal Appeal No. 39 of 1996. In the latter case, the Supreme Court held that;

uWe agree tho't on a ffrst appeal, from a conalctlon bg a.fudge the Appellant ls entltled to ho:ae the appellate Court's own conslderatlon and uleuts of the evldence as a whole and lts oun declslon thereon, The ff.rst appellate coutt has d dutg to reriew the euldence of the ca.se and to reconslder the

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tndterlals betore the trlal Judge. The appellate Court must then moke up tts oun mlnd not dlsregardlng the Judgment appealed from but carefullg uelghlng and conslder'lng lt."

We have kept these principles in mind in resolving this appeal. We shall resolve the grounds in the order in which the parties argued them.

t8l Ground <sup>1</sup>

The learned trial Judge erred in law and ln fact when he convicted the Appellant without Ilrst ascertaining that the Appellant had clearly understood the charge and the particulars thereof and thls occasioned a miscarrlage of justice.

# Appellant's submission

- [9] Counsel for the Appellant submitted that at the commencement of the trial, the charge was read out to the Appellant who told the court that he had heard and understood the same. Counsel further submitted that the Appellant told the court that "the charges are true." Counsel also pointed out that when the elements of the charge were explained to the Appellant, he told court that "I killed her intentionallg". Counsel further submitted that when the brief facts of the case were read out to the Appellant, he told Court that the facts were true. - [10] Counsel's contention was that it was not clear how the interpreter had explained the charge to the Appellant. Counsel further contended that it was not clear how the interpreter had explained "malice <sup>a</sup> forethought" to the Appellant. Counsel submitted that whereas the brief facts of the case were read to Appellant and he replied "the facts are tnte", the record does not however state the language the

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interpreter used during the proceedings. It was contended that the trial Judge had thus erroneously convicted the Appellant on his own plea of guilt.

- [1 1] Counsel further submitted that during allocutus, the Appellant changed the plea of guilty and raised self-defense wherein he stated that his deceased wife had a panga and that she wanted to kill him first. Counsel argued that by changing his plea even after conviction, the Appellant appears not to have clearly understood the charge and the particulars thereof. Counsel argued that it was the duty of the court to first ascertain that the Appellant was indeed unequivocal in his answers before entering a plea of not guilty and should not have proceeded to convict the Appellant. - [12] Counsel relied on the case of; Adan v Republic [1973] EA 445 and submitted that whereas the procedure laid down in the Adan case seemed to have been followed, it appears that the Appellant failed to know at what stage to dispute or explain the facts he wished the court to know. He invited this Court to hnd that the Appellant did not properly understand the charge and the particulars thereof. - [13] Counsel further submitted that since the Appellant may not have fully understood the charge and the particulars thereof, he prayed that this Court ought to set aside the conviction.

# Respondent's submissions

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[13] In respect to ground one (1) of the appeal, Counsel for the Respondent submitted that the procedure of plea taking was properly followed. He further contended that there was no evidence on the record showing that the Appellant did not understand what was going on.

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[15] Counsel submitted that the Appellant had failed to prove that there was any illegality that occurred during the plea taking process and that this ground of appeal should fail.

# Conslderatlon of Ground one (1)

- [16] Counsel for the Appellant submitted that whereas the Appellant had initially pleaded guilty to the charge of murder he, during allocutus, raised the defense of self -defense. It was Counsel's contention that the Appellant did not properly understand the charge and the particulars thereof. He further contended that from the record, it is not clear in what language the charge was read out to the Appellant. He thus invited us to set aside the conviction. - [7] We have thoroughly studied the Record of Appeal. The proceedings relating to the plea taking are to be found at page 7 and 8 of the record. They are as follows;

" The accused is present

Mn Christopher Tiinawe: Court clerk and interpreter.

Ct: Charge rea.d and explained to the acatsed person.

Accd: I haue heard and understood the charges

The charges are true.

Elements of murder explained

i) ls Kgomuhendo Pamale.

Acc: The deceased is dead.

(ii) Did you cause the death with malice aforethought?

Accd: I killed her intentionallg W"re6of13 b/

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# Ct: A plea of guilty entered.'

- [18] The record also shows that the facts were subsequently read out to the Appellant. The Appellant is recorded to have satd "The facts are correct." - <sup>I</sup>19] We do not accept the submissions of Counsel for the Appellant. It seems clear to us that the Appellant's plea of guilt was clearly unequivocal. Although the record does not indicate in what language the Appellant was communicating during the trial, the record does indicate that there was an interpreter. It is therefore safe to infer that the Appellant had followed and clearly understood the proceedings. - [20] It is our view that the plea taking procedure adopted by the trial Court was by and large in line with the guidelines set in the case of Adan v Republic [19731 EA 445 in which it was held as follows: -

'When q person ls charged ulth an offense, the charge and the paratcttlars thereof should be read out to hlm', so far as lnsslble ln his own langwage, but lf that ls not posslble ln a langaage whlch he can slr,o'k ond understand. Therealter the courA should explaln to hlm the essentlal lngredients of the charge and he should. be o.sked tf he admlts them. If he does adrnlt hls ansuer should be recorded as nearlg as posslble ln hls oun uords and then plea of Sullfu lonnally entered. The prosecutor should then be a.sked to state the facts of the case and the acc:rtsed be gitnn an opportunlty to dtqrute or explaln the Jacts or to add ang releaant facts he mag uflsh the court to knoul It the accused does not agree ulth the tacts as sCated bg the proseclttor or lntroduces neu) tacts whlch, { true mtght ralse a questlon as to hls gallt, a change oJ plea to one of not gatlty should be recorded and the trall should

ge7of13 LF; proceed. If the accused, does not dispute the alleged facts in any material respect, a conviction should be recorded and further facts relating to the question of sentence should be given before sentence is passed."

[21] In an earlier case of the same court of **Tomasi Mufumu v R [1959] EA 625** court held that;

> "....it is very desirable that a trial judge, on being offered a plea which he construes as a plea of guilty in a murder case, should not only satisfy himself that the plea is an unequivocal plea, but should satisfy himself also and record that the accused understands the elements which constitute the offense of murder....and understand that the penalty is lors death."

- [22] Thus, where the plea taken does not amount to an unequivocal plea of guilty to the offense to which the accused is convicted, the conviction must be quashed. See also R v Tambukiza s/o Unyonga [1958] EA **212.** We have borne the above principles in resolution of this ground of Appeal. - [23] In the case before us, we note that the charge was read and the Appellant indicated that he had heard and understood the same. He replied, "the charges are true." It is also evident that when the elements of the offence were explained to him, he replied "I killed her intentionally". - [24] It is our considered view, that the procedure as laid down in the case of **Adan v R (supra)** and **Tomasi Mufumu v R (supra)** for the recording of plea of guilty was followed, save for the omission to mention on record, the language in which the indictment and the facts were read and put to

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appellant. Given the circumstances, we consider that the plea of the guilty to the charge of murder was clearly unequivocal, notwithstanding the fact that the record does not indicate the language in which he was giving the responses.

[25] Article 28(3)(b) of the 1995 Constitution of the Republic of Uganda provides as follows;

> "Every person who is charged with a criminal offence shall be informed immediately in a language that the person understands, of the nature of the offence." $\cdot$

- [26] It is quite clear from the above provision that courts should indicate the language in which the indictment has been read and explained, and the language in which the proceedings were interpreted to the accused. It is meant to assist trial courts in discerning whether the Appellant fully understood the nature and consequences of the proceedings against $\ell \pi$ him. - [27] However, in the circumstances of this case, we are of the view that learned trial Judge's omission to indicate on the record the language of interpretation, would not render the conviction illegal. The record clearly indicates that there was an interpreter. The charges and the facts were read and explained to the Appellant. All his answers at all stages indicate that he understood what was said to him. There is nothing on the record to show that the Appellant did not understand the proceedings for himself nor his counsel. This ground therefore fails - $[28]$ Ground two (2)

The learned trial judge erred in law and fact when he imposed on the Appellant a sentence of 15 years'

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## lmprlsonment uhlch uta,s manlfestlg harsh and excesshre ond thls occasloned a mlscarrtage of Justtce.

## Appellant's submisslons

[2e] Counsel for the Appellant submitted that this court has powers and authority to give an appropriate sentence basing on its discretion. He cited Section 1 I of the Judicature Act to buttress his submission. He further cited part 1 of the Third schedule of the Constitutional Sentencing guidelines. Counsel argued that the trial court ought to have considered the mitigating factors to wit; that the Appellant was a firsttime offender, he readily pleaded guilty, he had three young children who were at the time of conviction five, three & a half and 2 years. Counsel contended that in the circumstances the sentence of 15 years' imprisonment was harsh and excessive and prayed that this Court reduce the said sentence.

## Respondent's submissions

[30] Counsel for the Respondent submitted that the sentence of 15 years imprisonment was neither harsh nor manifestly excessive. Counsel further submitted that the learned Judge considered the mitigating and aggravating factors, including the nature of the offense, and the manner in which the Appellant slaughtered his wife. He submitted that the sentence passed by the learned trial Judge of 15 years was justified. H prayed that the sentence be upheld

## Consideration of Ground 2

[31] This court, as an appellate court, can only interfere with the trial court's discretion in sentencing on limited grounds as has been set out in various decisions of the Supreme Court including the case of Bernard

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Kiwalabye Vs Uganda, S. C Criminal Appeal No. 143 of 2OOl in which it was held as follows;

oThe appellate court is not to lnterJere uttth the sentence lmposed bg o trlol court where that trlal courA ho.s exerclsed tts d.lscretlon on sentence, unless the exerclse of that dlscretlon is such that lt resu lts ln the sentence ilnposed to be mantfestly excessiue or lout as to a.mount to d miscarrlage of Justtce or uthere the trlal court lgnores to consider an Tmportant matter or circum.stance uhich ought to be consldered uhlle passlng sentence or uthere the sentence lmposed ls utrong ln prlnclple."

It does not matter that this Court would have given a different sentence if it had been the one trying the Appellant. (see Ogalo s/o Owoura v. R, f 1954f 24 E,ACA27Ol.

l32l The Appellant was sentenced to 15 years imprisonment r murder. While sentencing, the learned trial Judge stated as follows;

> "The convict shall be treated as Ttrst offender who moued guilty thus sauing the courts time. The conuict killed his wife who has lefi home uith three infant children to care for. The conuict is a young man who can usefullg serue the communttg. The conuict takes into houeuer of the special circumstances o/ this case. The conuict brutallg killing his uife in front of his own father. He apparentlg used a weapon like a panga. The murder arose out of a domestic conflict/ mental dispute. The conuict suspected his wtfe of hauing an extra marital affair. The convict must send out a signal to the communitg that lhls is an abhorred means of getting mental disagreements. Ihis offence is rampant in this area as uas reported bg the District Police fueagettottt M

Commander before the start of a preuious session. It must therefore be seiouslg curbed. Those guilty of the practice must be punished. The act of cutting with a knife is a uery deliberate act. Secondary euen afi.er antting the neck the conuict cut the deceased on the head. The conuict alleges self-defense but the nature of the injury contradicts this uersion of euents

The conuict has spent tuto months on remand which the court takes into account in light all of all circumstances o/lhis case the conuict is sentenced to 15 gears in pison."(sic)

- [33] In passing sentence of 15 years, the learned trial Judge considered both the mitigating and aggravating factors and passed a sentence consistent with previous decisions of this Court and the Supreme Court. - [3a] In Kifamunte Henry v Uganda [1998] UGSC 20 (15 May 1998f the Appellant was sentenced to a term of 20 years' imprisonment for murder. In Muhanga alias Mugume v Uganda (Criminal Appeal No. 453 of 2OL7l 12023] UGCA 49 the Appellant pleaded guilty and was sentenced to a term of 25 years' imprisonment for murder. In Mulumba Kaggwa & Anor v Uganda CACA No. O331 of 2OO9 this Court reduced the l"t Appellant' murder to 17 years' imprisonment s life sentence to imprisonment for - [35] Without proof that the learned trial Judge acted on a wrong principle or ignored some material factor, this court would have no reason whatsoever to interfere with the decision of the learned sentencing Judge.

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[36] Having found that all the grounds of appeal have no merit, this appeal accordingly fails.

The conviction and sentence are hereby upheld.

We so order.

Kouzall Signed and Delivered at day of $\overline{2025}$ $\frac{1}{2}$ $\mathbf{v}$ HON. JUSTICE MUZAMIRU KIBEEDI HON. JUSTICE CHRISTOPHER GASHIRABAKE $\cdots\cdots\cdots\cdots$ HON. JUSTICE JOHN OSCAR KIHIKA $\sim$