Okello v Uganda (Criminal Appeal 25 of 2022) [2025] UGCA 91 (28 March 2025)

### THE REPUBLIC OF UGANDA

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

[Coram: Geoffrey Kiryabwire, JA; Irene Mulyagonja, JA; Eva K. Luswata, JA]

### **CRIMINAL APPEAL NO. 025 OF 2022**

(Arising from High Court Criminal Session Case No. 295 of 2020 at Gulu)

#### **BETWEEN**

OKELLO DENIS ....................................

#### AND

UGANDA ...................................

(An Appeal from the Judgment of the High Court of Uganda Hon. Justice Tom *Chemutai J Delivered on 1<sup>st</sup> December 2021)*

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## JUDGMENTOF THE COURT

### lntrod uction

The Appellant was indicted and convicted of the offence of aggravated defilement contrary to Section 129 (3XaXa) of the Penal Code Act Cap 120.

#### The Facts

On the 8th day of December 2019 at Pakawera Village, Lii Sub county in Nwoya District, the Appellant performed a sexual act with the victim, a girl aged 5 years old. The Appellant and the family of the victim lived close to one another. The Appellant who was from another district, rented a garden on which to plant crops from the parents of the victim. On the day in question, it was alleged that early in the morning while the parents of the victim had gone to the garden leaving the victim at home alone, the accused went and defiled her in their kitchen.

#### Decision of the Trial Court

Thr, Appellant pleaded not guilty and was tried and convicted. Trial Judge sentenced him to 15 years'imprisonment. The time he spent on remand of 1year, L1 months and 14 days was deducted and the Appellant was to serve in total a jail term of 14 years and 16 days' imprisonment. The Appellant appealed sentence only namely: -

The Learned Troil ludge erred in law and fact when he sentenced the Appellont to 76 (Sixteen) years imprisonment which sentence is horsh ond excessive in the circumstonce of the cose.

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The Respondent opposed the Appeal.

At the hearing, the Appellant was represented by Mr. Jurugo l. Kodita and the Respondent by S. Oula, Senior Assistant DPP and R. Namutebi, a Resident State Attorney.

Thc parties sought the leave of court to adopt their written submissions as their legal arguments in this Appeal which was granted.

# Ruling on Preliminary Point of Law

Counsel for the Respondent argued that the appeal was against sentence only, and pursuant to Section 132(1Xb) of the Trial on lndictment Act, the Appellant was required to seek leave of Court, which he failed to do.

Taking into consideration that the Appellant in their written submissions indicated that he intended to orally seek leave of Court, but as a result of a lapse failed to do so, we agree to administer substantive justice under Article 126(2Xe) of the Constitution 1995 to allow the appeal against sentence only so that this lapse should not be visited on the Appellant. ln any event, we had already accepted the written submissions of the parties.

The preliminary objection is accordingly dismissed.

## Powers of the Appellate court

We are alive to the duty of this court as a first appellate court as decided in the case of tiifamunte Henry V Uganda SCCA No 10 of 1997 to reappraise all the evidence at trial and come up with our own inferences of law and fact.

The basis for setting aside a sentence imposed by a trial court were generally set out in Ogalo s/o Owoura v R (1954) 21 EACA 270.|n that appeal, the Appellant appealed against a sentence of 10 years' imprisonment with hard labour which had been imposed for the offence of manslaughter. The East African Court of Appeal held that: -

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"... The principles upon which an appellate court will act in exercising its jurisdiction to review sentences are firmly established. The Court does not alter a sentence on the mere ground that if the members of the court had been trying the Appellant they might have passed a somewhat different sentence and it would not ordinarily interfere with the discretion exercised by a trial Judge unless as was said in James v R, (1950) 18 EACA 147, "it is evident that the Judge has acted upon wrong principle or overlooked some material factor". To this we would also add a third criterion, namely, that the sentence is manifestly excessive in view of the circumstances of the case. An appropriate sentence should be proportionate to the offence with the gravest *offences attracting the most severe penalties and lesser offences in terms of aggravation attracting less severe penalties. Courts have also added another* principle of consistency in terms of equality before the law so that offences *committed under similar circumstances with similar degree of gravity should* attract the same range of sentences therefore precedents of the appellate courts are a relevant guiding actor..."

## In Kiwalabye versus Uganda Criminal Appeal No. 143 of 2001 (SC) this Court held:

"The appellant court is not to interfere with sentence imposed by a trial court which has exercised its discretion on sentence 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 or where a trial court ignores to consider an important matter or circumstances which ought to be considered when passing the sentence or where the sentence imposed is wrong in principle"

#### **Submissions of the Appellant**

Counsel for the Appellant submitted that the Trial Judge erred in law and fact when he sentenced the Appellant to 16 years' imprisonment. At page 30 of the Record

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of Appeal, the defence Counsel submitted in mitigation that the Appellant is a first time offender, was remorseful, was an orphan, taking care of his young siblings, who could still contribute to the development of the community, and that he had prayed for a lenient sentence.

Counsel further argued that the Trial Judge in sentencing the Appellant did not apply the principle of parity and consistency. ln this regard, Counsel relied on the case of Ninsiima Gilbert v Uganda C. A Criminal Appeal No.180 of 2010, where the Court of Appeal reduced the sentence imposed on the Appellant for aggravated defilement from 30 years' imprisonment to 15 years' imprisonment.

Similarly, we were referred to the case of Birungi Moses v Uganda, C. A. Criminal Appeal No.177 of2014, this the Court ofAppeal reduced the sentence imposed by on the Appellant for Aggravated Defilement from 30 years' imprisonment to <sup>12</sup> years'imprisonment.

Furthermore, in the case of Bakinga Daniel v Uganda C. A. Criminal Appeal No.038 of 2000, the Court of Appeal reduced the sentence imposed on the Appellant for defilement from 21 years of imprisonment to a sentence of 12 years.

Counsel argued given the above mitigating factors that the sentence meted out on the Appellant was manifestly harsh and excessive.

## Submissions of the Respondent

Co,rnsel for the Respondent submitted that the Counsel for the Appellant was misleading Court by stating that the Appellant was sentenced to 16 years' imprisonment, when the Record of Appeal at page 31., further showed that the time spent on remand of L year, 11 months and 15 days was deducted from the sentence. lt therefore followed, the Appellant was sentenced to 14 years and <sup>16</sup> days'imprisonment.

Counsel for the Respondent further argued that an appropriate sentence is at the discretion of the Trial Judge and the appellate court will only interfere with <sup>a</sup>

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sentence imposed by the trial Court if it is evident that it acted on a wrong principle or overlooked some material factor or if the sentence is manifestly harsh and excessive in view of the circumstances of the case, as was held in Kalabye Benard vs Uganda, SCCA No. L43 of 2001 which was cited with approval in Blasio Ssekawooya vs Uganda Criminal Appeal No. 107 of 2009.

Counsel further argued that the TrialJudge took into consideration the aggravating and mitigating factors before sentencing. Therefore, we have addressed ourselves to page 31 of the Record of Appeal, where the Trial Judge gave his sentence and reasons for sentencing as follows: -

"t hove considered the Aggrovoting ond mitigoting foctors in this case. The occused person wos 20 yeors when the victim wos 5 yeors old. I there......(sic!) sentence the occused person to a jail term of 16 yeors' imprisonment, the time he spent on remand should be deducted from the ioil term, i.e. 7 yeor, 11 months ond 14 doys' imprisonment. Hence will serve L4 years and 16 doys' imprisonment."

On the length of sentence, Counsel referred us to the case of Mgoro Hussein v Ug.rnda, Court of Appeal Criminal Appeal No. 0251 and 0305 of 2016 in which the appellant was sentenced to 20 years' imprisonment for aggravated defilement of <sup>a</sup> 5-year-old victim, this Court before dismissing the appeal observed that the sentence of 20 years' imprisonment is below the minimum limit of what is stipulated by the Sentencing Guidelines.

ln Seruyange Yuda Tadeo vs Uganda, Court ofAppeal Criminal Appeal No.080 of 2010, the appellant in that appeal was sentence to a 33 years' imprisonment by the trial court for defiling a 9-year-old girl. This honourable Court found a sentence of <sup>27</sup>years' imprisonment appropriate. 4

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ln Kizza Geoffrey vs Uganda, Court of Appeal, Criminal Appeal No. 76 of 2010, the appellant was convicted of aggravated defilement of a victim aged 12 years and sentenced to 30 years' imprisonment.

Counsel concluded that the sentence meted out was legally justifiable and so prayed that the sentence be upheld

### Findings and Decisions of Court

We have considered the submissions of both Counsel for which we are grateful.

ln determining what a harsh and manifestly excessive sentence is, this Court in the case of Ssekandi Muhammed v Uganda Court of Appeal Criminal Appeal No. 364 ot 2016, it was held that: -

"...it is now settled thot for the Court of Appeol os the first oppellont court, to interfere with sentence imposed by the triol court which exercised its discretion, it must be shown thot the sentence is illegol, or founded upon o wrong principle of low; or where the triol court foiled to take into occount on importont matter or circumstonce; or mode on error in principle; or imposed o sentence which is harsh ond monifestly excessive in the circumstonces."

We are also aware that aggravated defilement is a Capital offence that carries the death penalty as a maximum sentence.

ln line with the reasoning in Kyalimpa Edward v Uganda (supra), we have found that the sentence was neither harsh nor excessive. lndeed, in more recent decisions even much higher sentences have been rendered in comparable cases. lt is clear therefore that the TrialJudge followed the principle of parity and consistency while sentencing the Appellant to 1,5 years. a' (r,

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## Final Decision

Having held as we have on the above issue decide and order that:

r. The Appeal is dismissed.

We so order. Dated at This il Day of 2025. Hon. Mr. Justice Geoffrey Kiryabwire, JA Hon. Lady Just e lrene Mulyagonja, JA Hon. Lady Justice Eva K. Luswata, JA {'\4/")