Nshaija alias Rukyeikaire v Uganda (Criminal Appeal 142 of 2011) [2023] UGCA 220 (15 August 2023)

Full Case Text

### THE REPUBLIC OF UGANDA

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

(Coram: Muzamiru Mutangula Kbeedi, Christopher Gashiabake & Eva K. Luswata, JJA)

### CRIMINAL APPEAL NO. 142 OF 2011

(Arising from HCT-05-CR-CSC- No. 0040 OF 2009)

## NSHAIJA ABASI alias RUKYEIKAIRE APPELLANT VERSUS

## UGANDA RESPONDENT

[An appeal against the decision of the High Cout of Uganda at Mbarara (Hon. Justice Akiiki Kiza) delivered on the 2En day of June 2011 in HCT-05-CR-CSC- No. 0040 of 20091

## JUDGMENT OF THE COURT

The appellant was indicted with the offence of murder of Ms. Annet Nakate (deceased) on the 22,a of July 2008 contrary to sections 188 and 189 of the Penal Code Act. After a full trial, the appellant was convicted and sentenced to 28 years' imprisonment.

# 20 Backqround

The facts of the case as accepted by the trial Court are that the appellant was the husband of Ms. Zamzam Namara (PW1) and the two had one child. Following some domestic misunderstandings between them, Namara left the matrimonial home and started living separately in a rented one room house.

?5 After the separation, the appellant used to threaten PW1 with death. He even attacked her just one month after the separation. As a result, PW1 started fearing for her life and could not sleep in her house alone.

On 2lstJuly 2008, Namara (PWl)approached the deceased's father, Mr. Kibarizi Deus (PW2) and requested that the deceased stays with her in the house for a night as the person she used

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30 to stay with had gone. Mr. Kibarizi (PW2) allowed his daughter, the deceased, to spend the night at Namara's house.

On 22t712008 at around 5:00am while the deceased, Namara (PWl) and her child were sleeping, the appellant went to their residence and called PW1 three times. PW1 feared to open the door but she got up and sat on the bed. The appellant pushed the door and entered the house. As the deceased was trying to raise an alarm, the appellant cut her three (3) times - on the head and the neck and she bled to death. Thereafter, the appellant took off and disappeared.

After some time, the appellant was seen in Rwebikona in Mbarara Town from where PW4 D/lP Mugisha Jackson organized and had him anested. He was subsequently indicated with the offence of Murder C/S 188 & 189 of the Penal Code Act. He denied the offence and set up an alibi, After the full trial, the appellant was convicted and, as already stated, sentenced to 28 years' imprisonment.

The appellant was dissatisfied with the decision of the High court and filed this appeal against both the conviction and sentence on the following grounds: -

- 4s1 The learned trial Judge erred in law and fact when he failed to properly evaluate the evidence in regard to identification of the appellant, hence occasioning a miscarriage of justice. - The learned trial Judge erred in law and fact when he held that the appellant's alibi had been broken by the prosecution, hence occasioning a miscarriage of justice. 2 - so3 The learned trial Judge erred in law and fact by passing a manifestly harsh and excessiye sentence, hence occasioning a miscarriage of justice.

The appellant prayed to this court to allow the appeal and overturn the decision of the trial court.

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The respondent opposed the appeal and prayed to this court to uphold the decision of the High Court.

# ss Representation

At the hearing of the appeal, Mr. Chan Geoffrey Masereka appeared for the appellant on State brief, while Mr. Martin Ddungu, a Chief State Attorney in the office of the Director of Public Prosecutions (DPP) appeared for the respondent. The appellant was present in court.

60 Both parties sought, and were granted leave to proceed by way of written submissions which were already on the court record.

### Appellant's Written Submissions

Counsel for the appellant faulted the trial Judge in failing to properly re-evaluate the evidence in relation to the correct identiflcation of the appellant which resulted in erroneously convicting the appellant. Counsel referred us to the authority of Bo Moses and Anor Vs anda S

- Gs Couft Criminal Appeal No 1of 1997 where the Supreme Court discussed the conditions that must be considered before coming to a conclusion that the identity of an assailant or assailants has been established, namely: the length of time it took the witnesses to identify the accused, the distance between the witness and the accused, the light and the familiarity of the witnesses with the accused. - 70 With regard to the first condition, Counsel submitted that it was not disputed that the appellant and PW1 knew each other well as they were previously manied to each other. Further, that the appellant admitted having had domestic problems with PWI and therefore, it goes without saying that it is not by mere coincidence that the first person to blame would be the appellant.

Regarding the second condition namely, the distance between the witness and the accused,

75 Counsel submitted that the incident happened at about 5:00am and that apart from the moonlight, there was no other source of light around. That it is only logical that if the appellant

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broke into the PW1's house and the light was coming from the door, then had the appellant been the assailant he would have seen the intended target who was stated to be PW1 and cut her instead of the deceased with whom neither knew nor had a grudge with.

80 That basing on the above, Counsel submitted that no conect identification was made by PWI . Counsel cited the case of Yowana Sserunkuma Vs Uqanda (SC), Cr. App. No. 8 of 1989 (unreported) where the Court held that evidence of identiflcation, especially at night and with a case of a single witness, may be accepted but only after the most careful scrutiny.

Counsel prayed that the appeal should be pleased to find that the trial Judge failed to properly evaluate the evidence in relation to the identification of the appellant before coming to the conclusion that the prevailing conditions favoured a correct identification. 85

With regard to ground 2, counsel faulted the trial Judge for failing to evaluate the evidence as to the alibiset up by the appellant and simply relied on the identification of PW1, whose evidence was not conoborated, to quash the appellant's alibi. Counsel submitted that the trial judge done so, he would have made a finding that there was sufficient evidence that the appellant resided at his home in Rwampara and on that material day he had come to Mbarara to visit his parents.

On ground 3, faulted the trial Judge for not weighing the mitigating factors as against the aggravating factors which resulted in a miscarriage of justice. As such, so submitted Counsel, this court has a duty to weigh the factors raised. For this submission, Counsel refened to the

95 case o'f Aharikundia Yustina Vs Uqanda Supreme Couft Criminal Appeal No. 27 of 2015,

Counsel also argued that the trial court did not apply the principle of consistency in sentencing. Counsel cited the cases of Susan Kqula Vs Usanda, HCI-00-CR-SC-0775 where the accused cut her husband's throat with a sharp panga to death before their children and was re-sentenced to 20 years' imprisonment; and Uqanda Vs Uwera Nsenqa. Criminal Appeal No. 312 of 2013 where the accused ran over her husband with a car and eventually killed him at the gate in their home and was likewise sentenced to 20 years' imprisonment.

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Counsel concluded by praying to this court to consider the mitigating factors and the principle of consistency in sentencing and reduce the appellant's sentence accordingly.

### Respondent's submission

The respondent opposed the appeal in its entirety and responded to appellant's grounds of appeal as presented by the appellant. 105

On ground 1, it was the respondent's submission that there was enough light from the bright moon and enough time to allow the witness positively identify the appellant, whom she very well knew as her husband and was at a close range as the appellant entered the single room house of the witness from where he cut the deceased. That the factors favouring correct identification as enunciated in Abdallah Nabulere and Anor Vs Uqanda Supreme Couft Criminal Appeal No, 19 of 1978 were present and the witness could not have mistaken the appellant as the assailant. That the witness (PWl), very well knew the appellant as her husband with whom she had a

child, the attack took about 5 minutes, there was bright moon light, the witness identified the appellant as he entered the house, and as he cut the deceased three times on the head and the neck. 115

Counsel submitted that, in addition to the visual identification PWl also identified the appellant who called her name three times by voice. Counsel cited the case of Adama Jino Vs Uqanda, Court of Aopeal Criminal Appeal No. 50 of 2006, where it was held that evidence of voice 120 recognition is good corroborative evidence

Counsel for the respondent further submitted that the appellant and PW1 stayed together as husband and wife for more than a year; that PW1 very well knew the voice of the appellant, so much so that when he called her from outside, she immediately recognized his voice. PW1 also testified that the appellant had attacked her as he had earlier threatened her. Counsel prayed that a finding be made that evidence of voice recognition was corroborative evidence to the

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visual identification, and hold that the appellant as having been properly identified by both visual identification and voice recognition.

Counsel further submitted that there was also evidence of previous threats and attack by the appellant on the witness (PW1) who testified and told Court that she was scared of the appellant attacking her; and that is why she requested for the deceased to stay with her that night. PW1 130 stated that the appellant was threatening to kill her. Counsel relied on the case of *Bongonin* Santo Vs Uganda Court of Appeal Criminal Appeal No. 16 of 2017 for the proposition that evidence of previous attack and threat is admissible in evidence against the appellant as it forms part of the series of circumstances leading to the death of the deceased. Counsel argued that although the threats were directed towards PW1, it is relevant and can safely be considered to 135 uphold the conviction of the appellant because the appellant intended to Murder PW1, only for the deceased to fall victim. Counsel submitted that the evidence of threats was good corroborative evidence against the appellant as it supports the already existing evidence of identification.

Counsel further submitted that it is settled that conduct of an accused person after the 140 occurrence of an offence can be evidence to prove his guilt. Counsel contended that the appellant fled his known home and village immediately after the murder of the deceased. That such conduct was not conduct of an innocent person. Counsel relied on the *Remegious* Kiwanuka Vs Uganda, Supreme Court Criminal Appeal No. 4 of 1995 to support this submission.

On ground 2, Counsel for the respondent submitted that the trial Judge properly evaluated the 145 appellant's defence of alibi as against the overwhelming direct and circumstantial evidence and held that the appellant was placed at the scene of crime and his defence of alibi collapsed. Counsel argued that where the Prosecution adduced evidence placing the accused at the scene of crime, the alibi mounted as a defence crumbles. Counsel relied on the case of *Bumbo Vs*

Uganda, Supreme Court Criminal Appeal No. 28 of 1994 where it was held that once an 150

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accused person has been positively identified during the commission of a crime his claim that he was elsewhere must fail.

ln responding to ground 3, Counsel for the Respondent submitted that in arriving at the sentence of 28 years imprisonment the trial Judge had a comprehensive consideration of both the mitigating and aggravating factors. That the trial Judge also considered the period that the appellant had spent on remand.

Counsel also denied the claim that the sentence was harsh and excessive and cited authorities to show that the sentence was within the rang e of the decided cases. That in Ssernanda Chistopher and Anor Vs Uganda Coul of Appeal Criminal Appeal No. 77 of 2020 this Court

160 confirmed a sentence of 35 years' imprisonment for the offence of murder. That in the case of Bashasha Sharlf Vs Uqanda, Supreme Couft Criminal Appeal No. 82 of 2018, the Supreme Court while upholding the death sentence in the case of Murder of a 13 years old boy noted that one of the objectives of sentencing is deterrence. That in the case of Turyahebwa Eza and 12 Olhers Vs Uqanda, Supreme Couft Criminal Appeal N0.50 of 2075, the Supreme Court upheld 165 the sentence of life imprisonment for a murder that arose out of mob justice.

Counsel further submitted that the appellant was convicted of Murder contrary to Section 188 and 189 of the Penal Code Act and that the maximum punishment prescribed for Murder is death. Thatthe murderof a young innocentwoman of only 16 years, was committed in a very gruesome manner and this can be seen from Post Mortem Report, (PEl). Counsel prayed to this court to uphold the sentence of the High Court.

Counsel concluded by praying that the appeal be dismissed, and the conviction and sentences of the trial Court be upheld by this court.

### Resolution of the Appeal

775 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

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while making allowance for the fact that it neither saw nor heard the witnesses testify. See Ru/e 30fi)d of the Judicature (Couft of Aooeail Rules: Baquma Fred Vs Uqanda, Supreme Coutt Criminal Appeal No. 7 of 2004: Kfumante Henry Vs Uqanda Uaanda, Supreme Court Criminal Appeal No. 10 of 1997: and Pandva Vs R t1957I EA 336.

180 We shall bear in mind the above principles when resolving the grounds of appeal in the order in which they were argued by the parties.

## Ground 1 - ldentification of the appellant

Ground I was couched as follows: -

### 185 The learned trial Judge erred in law and fact when he failed to properly evaluate the evidence in regard to identification of the appellant, hence occasioning a miscarriage of justice.

It was the appellant's contention that the conditions which existed at the time the murder of the deceased was committed did not favour the correct identiflcation of the appellant as the assailant. On the other hand, the respondent disagreed and supported the findings of the High Court that the appellant was properly identified as the assailant.

The direct evidence against the appellant in the instant matter was the testimony of PWI who was at the scene of the crime and claimed to have witnessed the appellant murder the deceased by cutting on her head and neck.

195 It is now settled that before a court can convict an accused person based on the evidence of a single identifying witness, it ought to satisfy itself from the evidence whether the conditions under which the identification is claimed to have been made were favourable or difficult. And that in considering whether the favourable and unfavourable conditions existed, the court should particularly examine the length of time the witness observed the assailant, familiarity of the witness with the assailants, the quality of light, and material discrepancies in the description of

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2oo the accused by the witness. (See'. Jamada Nzabaikukize Vs Uqanda. Supreme Coui Criminal Appeal No. 01 of 2015', and Abdulla Nabulere Vs Uqanda Criminal Aopeal No. 9 of 1978),

Case law further provides that where the conditions favouring correct identification are difficult, there is need to look for other evidence, whether direct or circumstantial, which goes to support the correctness of identification and to make the trial court sure that there is no mistaken

205 identification. (See: Moses Kasana Vs Uqanda. Supreme Couft Ciminal Aooeal No. 12 of 1981 t1992 - 931 HCil and Abdulla Nabulere Vs Usanda lbid),

Lastly, Court must consider the evidence before it as a whole. See Jamada Nzabaikukize Vs Uoanda, buora)

When dealing with the issue of identification of the appellant, the trial Judge stated:

2L0 "l am aware that the attack took place at night and this PWI was a srng/e wrlness. Hence I wamed the assessors as I warn myself of the danger of mistaken identity and used to be cautious. The court has to consider the following points: -

a) Whether the witness knew the accused prior to the case.

b) Whether there was light at the scene.

2L5 c) The distance between witness and accused at the scene,

> d) The time taken by lhe wrtness while watching the offence take place. (See ABDULUH NABULERE Vs. UGANDA, UCA CR. APP. NO.9178).

> ln the instant case, both PWI and accused agreed that they were husband and wife and even have a 3 (three) year child together. PWI told coutl that, there was a bright moonlight outside, which had thrown the light inside the room with the now broken door which was open.

> She a/so told coul that, the episode from beginning to the end, took about 5 minutes. And that, the accused waslusf one metre from her. ln those circumstances, there could be no any possibility of mistaken identity on the part of PW as to whom had entered the room and cut the deceased She sard thal the accused had called her name three times and when she recognized his voice, she sat on bed. Hence she did not only see him, but also had first heard and recognized his voice. She to/d all those who had tumed up

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that it was the accused whom she had seen kill the deceased Ihis shows consclousness on her parl."

- We have reviewed the record of appeal. We are satisfied that there is no basis for faulting the trial Judge in his evaluation of the evidence of the single identifying witness and application of the law to it. The first form of identification of the appellant was the visual identification by PW1. The trial Court properly set out and evaluated the conditions which existed favouring the conect identification of the appellant. 230 - 235 The second form of identification of the appellant was by voice recognition. Although the authority cited by the trial court was specific to visual identification, this court has on several occasions upheld voice recognition as one of the recognised forms of identification - See: Adama Jino Vs Uganda, Coul of AppealCriminalAppeal No. 50 of 2006 and Bukenya Patrick & Others Vs Uqanda, Court of Appeal Criminal Appeal No. 15 of 2001 . - 240 The Court of Appeal of Kenya sitting at Meru in the case of Boniface Gitonqa Vs Republic [20151 eKLR stated the law on voice identification as follows:

"ldentification by voice nearly always amounts to identification by recognition. Yet here as in any other cases care has to be taken to ensure that the voice was that of the appellant, that the complainant was familiar with the voice and that he recognised it and that there were conditions in existence favouring safe identification."

250 PW1 was familiar with the appellant having previously lived with him as her spouse and produced a child with him. PW1 heard the appellant's voice when he called her name three times before breaking into the single+oomed house where PW1 and the deceased were residing. The distance between the appellant and PW1 was very short. At the time of calling, the appellant and PW1 were separated by only the walls of the house which consisted of a single room measuring approximately 7 feet by I feet. The fact that the appellant called more than once eliminated the possibility of mistaken voice recognition on the part of PW1. This was further buttressed by the fact that immediately after the murder, PW1 told the PW3 (LC Vice

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255 Chairperson) and the lnvestigating Officer (PW4) that the assailant was none other than the appellant.

The last form of evidence before the trial court was the existence of previous threats from the appellant to kill PW1 which were even reported to the police. PW1, in her testimony, made an account of the same thus:

260 265 270 "l had not seen him for that one month, at one time, he came to my work place and wanted to kill me but he was chased by the neighbours and he run away. lt was around 5p.m. He was chased by the father of the deceased, her mother and others whose names I do not recall. He was strangling me when / was sayed by these people. I reporled this incident to Biharwe police. I made a statement there. This was 3 days before he came and killed the deceased. The deceased was sleeping with me as I was scared to stay in the house alone. She had come to stay with me only that night. I was scared as [the appellant] was threatening to kill me and he had just strangled me. He was a/so threatening to kill me if, I separated from him. He used to fight residents in the village and when I could threaten to leave him, he would threaten to kill me. I had repofted all this to hls parents. [The appellant] killed the deceased, instead of me. He had thought that he had killed me."

Evidence of previous threats and attack is admissible in evidence against an accused person as it forms part of a series of circumstances leading to the death of the deceased. See: Akbar Hussein Godi Vs Uqanda, Supreme Couft Criminal Appeal No. 3 of 2013, and Bonqonin Santo Vs Uaanda, Coutt of Appeal Criminal Appeal No. 16 of 2017.

275 The probative value to be attached to the evidence of prior threats was discussed in the case of Waihi and Another vs Usanda [1968] EA 278 at paee 280 where the East African Court of Appeal stated as under: -

"Evidence of a pnor threat or of an announced intention to kill is always admissible evidence against a person accused of murder, but its probative value vaies greatly and may be very small or even amount to nothing. Regard must be had to the manner in which a threat is uttered, whether it is spoken bitterly or impulsively in sudden anger or jokingly and reason for the threat, if given, and the length of time between the threat and the killing are also material. Being admissible and being evidence tending to connect the accused person with the offence charged, a prior threat is, we think capable of 28s conoborating a confession .... "

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ln the instant case, the weight to be attached to the threats is high. The threats happened only three days to the fateful morning. They were followed by the acts of openly strangling PW1 in broad day light and in the full view of her neighbors and the deceased's parents. Even if the threats were directed at the murder of PW1 , there is sufficient proximity between the threats and the occunence of the death of the deceased who the trial court rightly found to have fallen victim or a mistaken target of the murder when she spent the material night with the intended target, PWl, when the execution of the murder plan was carried out.

295 300 305 The last form of circumstantial evidence took the form of the disappearance of the appellant from his known home and village immediately after the murder of the deceased. The lnvestigating Officer (PW4) testified before the trial Court that when she went to the scene of the crime and found the deceased's body lying in a pool of blood, he, among other things, interviewed PW1. PW1 informed him that the assailant was her former husband, the appellant. The police could not get the appellant immediately as he had disappeared from his known home and village. So they put in place efforts to trace him. A few days later, PW4 received information that the appellant had been cited in Rwebikona in Mbarara Town. He then organized and arrested him from there and took him to the Police Station for interrogation. ln Rerneqlous Kwanuka vs Uoanda. Suoreme Couft Criminal Appeal No. 41 of 1995. 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.

ln the premises, we find that the appellant has no basis for faulting the evaluation of the evidence by the trial Judge. Accordingly, ground one fails.

## Ground 2 - Alibi

Ground two was couched as follows:

The learned trial Judge erred in law and fact when he held that the appellant's alibi had been broken by the prosecution, hence occasioning a miscarriage of justice. 310

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The appellant's alibi raised before the trial court was that on the day he was stated to have murdered the deceased, he was in his home in Mutukura and that he did not know PW1's rented home (the crime scene) in Omukihangire Trading Centre in Mbarara District.

315 The position of the law regarding the defence of a/rbi is that it is not the duty of an accused person to prove his a/rbi; it is up to the prosecution to destroy it by putting the accused person squarely at the scene of crime and thereby proving that he is the one who committed the crime - See: Sekffo/eko Vs. Uoanda /79681 EA 531.

Further, it is also important that the accused raises an alibi at the earliest opportunity, preferably at the point of arrest or soon thereafter, otherwise it may just be an afterthought.

The duty of the trial court, when faced with evidence adduced by the prosecution showing that the accused was at the scene of crime, while, on the other hand, the defence not only denies it but also adduces evidence showing that the accused person was elsewhere at the material time, was summarised in the case of Booere Moses & Another Vs. Uqanda (SO Ciminal Appeal 32s No.1 of 1997 thus:

"... Where the prosecution adduces evidence showing that the accused was at the scene of cime, and the defence not only denies it but also adduces evidence showing that the accused person was elsewhere at the material time, it is incumbent on the court to evaluate both vers ions iudiciallv and qive reasons whv one and not the other version 330 is accepted. lt is a misdirection to accept the one version and then hold that because of that acceptance per se the other yersion ls unsustainable." lEmphasis addedl

From the record, there is no doubt that the learned trial Judge evaluated both the prosecution evidence and the appellant's a/rbi and found that the appellant was properly placed at the scene of the crime by the prosecution evidence. As such, the appellant's alibi could no longer stand

335 thereafter. According to the case of Lt. Jonas Ainomuoisha Vs Uqanda, SCCR. AppealNo. 19 of 2015. one of the ways by which the prosecution discharges its burden to disprove an a/ibl is by adducing cogent evidence which puts the accused at the scene of crime.

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Accordingly, we are satisfied that the appellant's complaint about the failure of the trial judge to properly evaluate his defence of a/lbl is without any basis. lt is hereby rejected. Ground two therefore fails.

#### Ground 3:

Ground three was couched as follows:

# The learned trial Judge erred in law and fact by passing a manifestly harsh and excessive sentence, hence occasioning a miscarriage of justice.

- 345 It is now settled, that for this Court, as a first appellant Court, to interfere with the sentence imposed by the trial Court, it must be shown that the sentence is illegal, or founded upon a wrong principle of the law, or that the trial Court failed to take into account an important matter or circumstance, or made an error in principle, or imposed a sentence which is harsh and manifestly excessive in the circumstances. See: KamVA Johnson Wavamuno Vs anda - 3s0 Supreme Couft Criminal Appeal No.16 of 2000 (Unreported): Kwalabve Bernard Vs Uqanda, Supreme Coui Criminal Appeal No. 143 of 2001 (unrepofted): Wamutabanewe Jamtu Vs Uqanda, Supreme Court Criminal Appeal No.74 of 2007 and Rwabuqande Moses Vs Uqanda, Supreme Courl Criminal Appeal No. 25 of 2014

355 From the appellant's submissions, the gist of the appellant's complaint about the sentence is that the term of 28 years' imprisonment was out of the range with the sentences passed by the courts in murder cases, and was reached upon by the trial judge without weighing the aggravating factors against the mitigating factors.

The respondent's Counsel disagreed. He submitted that the trial Judge considered the mitigating and aggravating factors, the time that the appellant had spent on remand, and the applicable laws and meted out an appropriate sentence.

When sentencing the appellant, the kial Court stated thus

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#### "Court: Sentence and reasons thereof:

Accused is allegedly a first offender. He has been on remand for about 3 years. ltake account \$ic!) while considering the sentence to impose on him. He has prayed for a leniency and that he has a young daughter to look afier.

He is a young man of 23 years. However, the accused committed a serlous offence. He wantonly attacked an innocent and law abiding young woman who was peacefully sleeping. From the evidence on records his intention was to do away with his wife, but he mistook her for the deceased. He had previously not only attacked his wife but also had threatened her with death if she ever left him. Hence on this fateful day, he fulfilled his threat, to kill her, but instead killed the deceased. The blows which the accused inflicted on the deceased were savage in nature and had showered that he had no mercy to his victim. This courl would not show mercy. He took away a life of a young woman who will never be seen again in this world. She will be mlssed by her relatives and other loved ones. ln my considered view the court should pass a stlff senfence lo match the cime.

Putting everything into consideration I sentence the accused to 28 (twenty-eight) years imprisonment. Right of Appeal explained.'

380 The specific mitigating factors raised by the appellant's Counsel as having not been considered by the trial court were that the appellant was a first time offender, had been on remand for three years and had a family to look after. From the above sentencing ruling, it is crystal clearthat all those factors were considered by the trial court along with the aggravating factors. Accordingly, the appellant's complaint in that aspect is relected.

38s 390 As regards the appellant's complaint that the trial Court breached the principle of consistency, a review of the Sentencing Ruling does not, on the face of it, expressly indicate that the trial Judge considered this principle before arriving at the decision to impose the imprisonment term of 28 years upon the appellant. Sentencing Principle No.6(c) of the Constitution (Sentencing Guidelines for Courts of Judicature) Practice Directions, 2013- Legal Notice No.8 of 2013 imposes a duty upon courts to ensure "parity" and "consistency" in sentencing in the following terms:

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"Every courl shall when sentencing an offender take into account ... the need for conslstency with appropriate sentencing levels and other means of dealing with offenders in respect of similar offences committed in similar circumstances."

395 400 How the above duty is to be discharged is not set out in the Practice Directions. As such, it is left to the individual Judicial Officer to determine how best to discharge the duty in the circumstances of each case. However, whatever style the Judicial Ofiicer adopts, the record of the court should speak for itself and leave no room to speculation as to how the duty was discharged. One of the tested ways of achieving this is by the court citing the specific decided cases which considered similar facts which it has relied on in making the sentencing decision. The trial court record in the instant matter does not show that the trial Court adopted this best practice. And neither does it reflect any other style used by the trial Court indicative of whether he was alive to the principle of consistency while sentencing the appellant.

410 Nonetheless, we find that such failure did not occasion any injustice in the circumstances of this case as the sentence of 28 years' imprisonment was not out of range with the sentences 405 imposed by this court and the Supreme Court in decided murder cases. ln Ahaikundira Yustina vs. Uganda, Supreme Couft Criminal Appeal No. 27 of 2015, the Supreme Court stated that the sentences imposed in murder cases often fall in the range of 25 years' imprisonment and above. The court then set aslde the death sentence imposed by the trial Court and substituted it with the sentence of 30 years' imprisonment for the appellant who brutally murdered her husband and cut off his body parts in cold blood.

ln Kvaterekera Georoe William VsUoanda Court of ADDEAlCriminal Aooeal No.773 of 2010 this Court confirmed the sentence of 30 years imposed by the trial Court on the appellant who had fatally stabbed his victim on the chest. ln Ssemanda Chrlsl er and Mu Denls Vs. Uoanda. Couttof Aooea lCriminal Appeal No, 77 of 2010, this Court confirmed a sentence of 35

415 years' imprisonment for the offence of murder. ln Ksitu Maiaidin alias Moata Vs Uqanda, Coutt of Appeal Criminal Appeal No. 028 of 2007, this Court upheld a sentence of 30 years' imprisonment for murder. The Appellant had killed his mother.

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We accordingly find that the 28-year imprisonment term is not out of range with the decided cases in murder cases and neither is it harsh nor excessive in the circumstances of this case. Ground three therefore fails. 420

## DECISION OF COURT

- 1. The appeal is dismissed. - 2. The conviction of the appellant for the offence of murder, and the sentence imposed by the High Court are hereby confirmed.

#### 425 We so order.

Delivered and Dated this.....l.2...... day of h\$qo5Y 2023 \/v\-4 MUZAMIRU MUTANGULA KIBEEDI Justice of Appeal r CHRISTOPHER GASHIRABAKE Justice of p L EVA K. U Justice of

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