Obote v Uganda (Criminal Appeal No. 331 of 2017) [2023] UGCA 125 (30 March 2023)


THE REPT'BLIC Otr UCAITDA

# THE COURT OF APPIAL OF UGANDA AT ARUA

# CORAM: CHEBORION; MUGENYI AND GASHIRABAKYE, JJA

# CRIMINAL APPEAL NO. 331 OF 2017

OBOTE DAVID .......... ,.., APPELLANT

# VERSUS

UGANOA RESPONDENT

(Appeal from the High Court of Uganda at Lira (Nabisinde, J) in Criminal Case No.15 of 2015)

Criminal Appeal No.33l of 2017

I

### JUDGMENT OF THE COURT

### A. Backqround

- 1. Mr, David Obote ('the Appellant') was, pursuant to a plea bargain agreement, convicted of the offence of murder contrary to sections 188 and 189 of the Penal Code Act, Cap. '120 and sentenced to twenty (20) years' imprisonment. - 2. The Appellant subsequently lodged the present Appeal on the singular ground that the trial judge erred in law when she relied upon a plea bargain agreement that did not mention failed the time spent on remand in arriving at the negotiated 2o-year sentence. Citing the decisions of Rwabuqand e Moses v Uoanda. Criminal Appeal No. 25 of 2014 and Kvalimpa Edward vs Uqa nda. Criminal Aooeal No. 10 of 1995 (both, Supreme Court), learned Counsel urged the Court to vary the sentence by the period of 3 years, 'l month and 17 days that the Appellant had spent on remand as at the date of his sentencing. - 3. The Respondent concedes the illegality of the 2o-year sentence to the extent thal it falls short on the constitutional prerogative to deduct the period a convict has spent on remand. Leamed State Counsel invited this Court to invoke its powers under section 11 of the Judicature Act, Cap. 11 and section 132 of the Trial on lndictment Act, Cap. 23 to remedy the error. - 4. At the hearing, Mr. Samuel Ondoma of M/s Alaka & Co. Advocates appeared for the Appellants while the Respondent was represented by Mr. Patrick Omia, the Resident Chief State Attorney of Arua.

### B. Determination

- 5. The succinct provisions of Article 23(8) of the Constitution and Guideline 15 of the Constitution (Sentencing Guidelines for Courts of Judicature) (Practice) Directions, 2013 ('the Sentencing Guidelines'), as elaborately elucidated in Rwabuqande Moses v Uqanda (supra), enjoin courts to compute applicable sentences by arithmetically deducting the period that convicts have spent on remand - 6 It is well established law that an appellate court may interfere with the sentence imposed by a trial court where the sentence so imposed is tainted with illegali\$.

( rirninal Appeal No. .ii I ol'10I <sup>7</sup>

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# See Kiwalabye vs. Uqanda, Criminal Appeal No.143 qf 2001 and Kvalimpa Edward vs. Uqanda, Criminal Appeal No.10 of '1995 (both, Supreme Court).

7. The constitutional obligation upon a trial court to consider the period spent on remand would, in my view, extend to sentences arrived at by a plea bargain. Accordingly, the 2o-year sentence that was handed down by the trial court would be illegal to the extent of its violation of Article 23(8) of the Constitution as clarified by the MbgEEdg case.

### C. Conclusion

8. ln the result, this Appeal against sentence is upheld. The 2o-year sentence imposed upon the Appellant by the trial court is hereby varied by deducting therefrom the period of three (3) years, one (1) month and seventeen (17) days that the Appellant spent on remand.

It is so ordered.

Dated and detivered ar Kampar" t i" . Sfi"v or 2023. f{f.\*q

Ba shaki Cheborion Justice of Appeal

Monica K. Mugenyi Justice of Appeal

-- ch pher Gashirabake Justice of Appeal

('rinr ina I Appeal No. .1-l l ol'2017