Niyagaba v Uganda (Criminal Appeal 498 of 2015; Criminal Appeal 712 of 2015) [2024] UGCA 20 (25 January 2024)

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

(Coram; Cheborion Barishaki, Hellen )bura and Eva Luswata, JJA.)

## CRIMINAL APPEAL NOS. 0498 and 0712 OF 2015

## NIYAGABA GERALD APPELLANT

#### VERSUS

## UGANDA RESPONDENT

(Appeal from the decision of High Court of Uganda at Nakawa before Her Lordship Hon. Lady Justice t0 Elizabeth lbanda Nahamya, J delivered on the 13/10/2014 in Criminal Session Case No. 314 of 2011.)

# <sup>J</sup>UDGMENT OF THE COURT

#### lntroduction

The appellant was indicted, pleaded guilty and was convicted on his own plea of guilty of the offence of murder contrary to sections 188 and 189 of the Penal Code Act by the High

r5 Court (Elizabeth lbanda Nahamya,J )on 13/10120L4, He was sentenced to 26 years and <sup>6</sup> months' imprisonment,

#### Background Facts to the Appeal

The facts of this case as ascertained from the court record are that Niyagaba Gerald, on 25103120LL at Kito Kirinya village in Wakiso district with malice aforethought unlawfully killed

zo Kyalisima Ketty, The appellant was consequently arrested, indicted and he pleaded guilty, He was accordingly convicted and sentenced as aforementioned, Being dissatisfied with the decision of the trial Court, the appellant appealed to this Court on the following one ground;

> "That the learned trial J udge ened in law and fact when she passed a manifestly harsh and excessive sentence against the appellant, thereby occasioning a miscarriage of justice."

#### Representation

At the hearing, Mr, Henry Kunya represented the appellant on State Brief while Ms, Fatinah Nakafeeero, Chief State Attorney from the Office of the Director Public Prosecutions s (ODPP) appeared for the respondent. The appellant followed proceedings from Upper Prisons Luzira via zoom, Both Counsel filed written submissions which were adopted and have been considered in this judgment.

#### Appellant's Submissions

Counsel submitted that the law is now settled that an appellate Court is not to interfere with r0 the sentence passed by the trial Court which has exercised its discretion unless the exercise of the discretion is such that it results in the sentence imposed to be manifestly excessive or so low as to amount to a miscarriage of justice. He relied on the decision in Kiwalahye vs Uganda, SCCA No.143 of 2001cited with approval in Kimera Zaverio vs Uganda, CACA No. 427 of 20141o support his submission,

- t5 Counsel then contended that the seriousness of the offence in the instant case was mitigated by a number of factors as presented before the learned trial J udge, namely that the appellant was; a first time offender, a relatively young man who readily pleaded guilty and thus saved court's time, remorseful, provoked by the deceased and under intoxication, Further, that the appellant was on remand for 3 years and 6 months, - 20 Counsel argued that in view of the above mitigating factors and owing to the fact that the appellant had a young child he had produced with the deceased whom he had to work for and support, the sentence of 26 years' imprisonment though legal, was manifestly excessive, He contended that although the learned trial J udge alluded to having considered the mitigating factors, passing a sentence of 26 years against a father of a motherless child - 2s and who is doing his best to reform by taking up education and be a better person reveals

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the contrary, According to counsel, it means putting the life of the deceased and appellant's vulnerable child at stake,

Counsel supported his argument with the decisionin Tumwesigye vs Uganda, CACA No. 46 of 2012, where the appellant was convicted of murder and sentenced to 32 years' s imprisonment, 0n appeal, this Court set aside that sentence for being manifestly excessive as to cause a miscarriage of justice and substituted it with a sentence of 20 years' imprisonment, He also cited Anywar Patrick vs Uganda CACA No.166 of 2009, where this Court set aside a sentence of life imprisonment imposed on the appellant for the offence of murder and substituted it with a sentence of 19 years and 3 months' imprisonment,

r0 Counsel prayed that the appeal be allowed and the sentence be substituted with a more lenient one,

#### Respondent's Submissions

Counsel submitted that an appellate Court will not interfere with the sentence imposed by the trial Court which has exercised its discretion, unless the exercise of discretion is such

- ls that it results in the sentence imposed being manifestly excessive or so low as to amount to a miscarriage of justice or where a trial court ignores to consider an important matter or circumstance which ought to be considered while passing the sentence or where the sentence imposed is wrong in principle, He relied on Wamutabaniwe Jamiru vs Uganda, SCCA No. 74 of 2007', Kamya Johnson Wavamunno vs Uganda, SCCA No.16 of 2000; 20 Kyalimpa Edward vs Uganda, Supreme Court Criminal Appeal No. 10 of 1995 and - Karisa Moses vs Uganda, SCCA No. 23 of 2016for that position,

Counsel submitted further that in arriving at a sentence of 26 years and 6 months' imprisonment, the learned trial J udge had a comprehensive consideration of both the mitigating and aggravating factors as well as the period spent on remand by the appellant,

2s She argued that the appellant was convicted of murder and the maximum penalty under

section 189 of the Penal Code Act is death, Further, that under the Constitution (Sentencing Guidelines for Courts of J udicature) (Practice) Directions, 2013, 3'd schedule, part one provides that the starting point for murder is 35 years' imprisonment and the sentencing range is from 30 years' imprisonment to death, She submitted that the sentence of 26 years

s and 6 months' imprisonment imposed against the appellant was therefore not manifestly harsh and excessive as contended by the appellant,

Counsel also pointed out that the trial court rightly directed itself on the law and applied it to the facts before arriving at the sentence. She cited the decision in Bashasha Sharif vs Uganda, SCCA No.82 of 2018where the Supreme Court while upholding a death sentence r0 observed that one of the objectives of sentencing is deterrence and agreed with the Court of Appeal that the manner in which the appellant in that case killed the innocent child and dismembered his body, depicted a depraved person devoid of all humanity,

Counsel also alluded to the decision in Turyahabwe Ezra & 12 others vs Uganda, SCCA No. 50 of 2015, where the Supreme Court upheld a sentence of life imprisonment for a ls murder that arose out of mob justice, She urged this Court to be guided by the range of sentences above decisions and uphold the sentence of 26 years and 6 months' imprisonment and dismiss the appeal,

#### Resolution by the Court

We have had the opportunity to carefully study the record of appeal and consider the 20 submissions of both counsel, We have also perused the relevant laws and authorities cited to us plus those not cited but which are relevant to the issues under consideration. We are alive to the duty of this Court as a first appellate court to review the evidence on record and reconsider the materials before the trial J udge, and make up its own mind not disregarding the judgment appealed from but carefully weighing and considering it, See Rule 30(1) (a) of

2s theJudicature (Court of Appeal Rules) Directions, S.l 13-10.

This appeal is premised on only one ground that faults the learned trial J udge for passing <sup>a</sup> manifestly harsh and excessive sentence against the appellant and occasioning <sup>a</sup> miscarriage of justice, The well settled position of case law on the reasons this Court can interfere with the sentence imposed by the trial court have already been well articulated by

s both counsel in their respective submissions as summarised above,

We note that in arriving at her decision 0n pages 23-25 of the record of proceedings, the learned trialJ udge stated found as follows;

"l have considered the aggravating and mitigating factors as presented by the parties, I particularly note the degree of injuries which were extensive, The convict left the deceased's intestines out and I0 he inflicted injuries on a vulnerable part of the deceased's stomach, The Convict premeditated upon the murder of his wife yet he should have been protector of his wife, The offence was notivated and demonstrated with a lot of hostility. Domestic violence is a vice which is eating up our society and should be discouraged. The Convict used a knife to commit the act on the mother of his 2-month old baby, mlrelver in front of the baby. The baby is now left rnotherless it is a <sup>I</sup>s pathetic legacy,

Murder is a very serious offence that is why the law also takes a tough stance upon murderers. A perszn convicted of this offence is liable to suffer death, The prosecutor has spared the convict of a death penalty but relying on paragraph 20 off the sentencing guidelines she implored court to mete out a 55 years' imprisonnent sentence, ercluding a period of 3 and a half years already spent on 20 remand,

> ln nitigation Senior counsel Kafuko Ntuyo prayed for a lenient sentence since this was a typical case of domestic violence. He considered paragraph 21 of the sentencing guidelines and highlighted the fact that he has readily pleaded guilty and the fact that the convict committed a single act and that he is a first offender who has shown remorsefulness. He also brought out a point and that is that the convict has taken liquor and there are elenents of provocation (sic), Additionally, the convict suspected the deceased to have other men. The deceased was also drunk and she talked to her husband who was enquiring why she was late in a rude manner, I have

γε ης με λόθα 33 λεθις αυν με γανλεί διαλως το ιείοιωαζοιλ εευξευχό το 52 λεθις. cousigeted the youthfullets of the convict at the time he committed the offence. As it is still a youth,

ουμ μου si τρίτη θρισμού του του του του του του του του του του was need on the deceased to inflict multiple injuries. The convict is slowly being rehabilitated, he is is se seining it is clear for but it is clear for the injuries as itemporary of the knife for but it is clear for the time is a self-or but it is clear to the port that it convict got the knife which she had from her. The convict however was unequivocal in what he soli pereby piereby piereby piereby piereby sid total based seemed tampetes, showing the minimum side in the parameter and the parameter and the parameter and the parameter and the parameter and the parameter and the param Αςςοιαιμα το μια γο ριο μοι οι ενα λοι οι οι οι οι οι οι οι οι οι οι οι οι ο ием јо иодеәм е se зұбіs иі биіцілие биіsп әио үзеә үзім рәпзиә зұбіз е оз әрпз seм рие. pooze to keep him company and slept off. When the wife returned at 10:30pm, she too was drank According to him he had waited for his wife to return home to no avail. He decided to purchase however I will not reproduce it but it is of importance to imagine the scenario as he articulated it. υν sadden fo count, the convict Miyagaba Gerald gave his one narration of what happened

yis adouizing bein at the death of his sister and prayed for a similar high sentence of 55 years. impusoument term which the prosecutor had requested. The brother to the deceased expressed ικες se samily members they produce with the prosecution and mete out 55 years'. The cousin to the deceased who was in court butst into tears when asked about the impact on their.

*ispusito att to ssantuario signaturi* $\varsigma z$ espoouse the gentencing principles. Among the mitigating factors is the factor of to a the community pursuant to paragraph 6 of the sentencing guidelines which contr unast palance the gravity of the offence, the impact of the offence on the deceased's has readily pleaded guilty and is a first offender with no previous conviction. However, this $\overline{0}$ sou) and uo tamily should be made to encounter such a bad end of their loved and. The convict $\gamma$ yes e si signification of Kikinya LC I however the local council of Kikinya LC I however this is a sed

hereby deducted. Your final sentence is therefore 26 years and 6 months' imprisonment." 30 year imprisonment period. The period of 3 years and 6 months areas of the period. $\mathbf{e}$ of blenge side shects of this case, I hereby sentence you Niyagaba Gerald to a

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It is apparent from the above excerpts of the record that the learned trial J udge did consider both the aggravating and mitigating factors as well as the period the appellant had spent on remand before sentencing him, We therefore find no merit in counsel for the appellant's contention that she did not do so,

s We shall now proceed to determine whether the sentence imposed against the appellant was manifestly harsh and excessive as to cause a miscarriage of justice, To that end, we shall look at the range of sentences in similar offences with more or less similar circumstances where the appellant was convicted on his own plea of guifty, ln so doing, we shall also be complying with the principle of consistency in sentencing that was well 10 articulated by the Supreme Court in Aharikundira Yustina vs Uganda(supra). ln that appeal, the Court held thus;

> "lt is the duty of this court while dealing with appeals regarding sentencing to ensure consistency with cases that have similar facts, Consistency is a vital principle of a sentencing regime, lt is deeply rooted in the rule of law and requires that laws be applied with equality and without <sup>u</sup>nj u st i f i a b I e d i ffe re n t i a t i o n, "

ln Mwesige Peter vs Uganda, CACA No. 527 of 2014lhis Court reduced a sentence of 35 years to 15 years 0n a plea of guilty for murder, ln Emeju Juventine vs Uganda, CACA No. 095 of 2014 where the appellant killed his wife with an axe, and was 0n his own plea of guilty convicted of the offence of murder and sentenced to 23 years' imprisonment. On zo appeal, this Court reduced the sentence to 18 years' imprisonment,

ln Anguyo Robert vs Uganda, CACA No. 048 of 2009, the appellant picked a hammer from among the tools his uncle was using and assaulted him on the head, The deceased uncle fell down unconscious and later died, The appellant was indicted and upon him pleading guilty, he was convicted of murder on his own plea of guilty and sentenced to 20 zs years' imprisonment, 0n appeal to this Court, the sentence was set aside for reason that

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the trial court had not taken into account the period spent on remand. He was sentenced afresh to 18 years' imprisonment.

ln Okwong Mungu Ronald vs Uganda, Court of Appeal CriminalAppeal No. 212 of 2016, the appellant killed the deceased by strangulation and upon being indicted of the offence of murder he pleaded guilty and he was accordingly convicted. He was sentenced to life imprisonment, but on appeal to this Court the sentence was reduced to a term of 32 years and 8 months' imprisonment,

The range of sentences for murder in the above cited decisions where the appellants pleaded guilty like in the instant case, is between 15 to 32 years and 18 months. Having considered all the aggravating factors, especially the brutal manner in which the appellant murdered the deceased and the mitigating factors presented before the trial court, we do not find the sentence to be manifestly harsh and excessive as contended by the appellant. ln any event, the sentence of 26 years and 6 months is within the sentencing range of cases of a similar nature. ln the premises, we find no valid reason to interfere with the learned trial Judge's discretion in sentencing the appellant to 26 years' and 6 months' imprisonment.

Consequently, this appeal fails and it is accordingly dismissed and the sentence upheld,

We so order

esu 5o^.r-- Dated at Kampala this day of .9 <sup>2024</sup>

CHEBORION BARISHAKI

JUSTICE OF APPEAL

HELLEN OBURA JUSTICE OF APPEAL EVA LUSWATA JUSTICE OF APPEAL

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