Okello v Uganda (Criminal Appeal 403 of 2017) [2023] UGCA 244 (6 June 2023)

# THE REPUBLIC OF UGANDA IN THE COURT OF APPEAL OF UGANDA AT GULU Coram:

Egonda-Ntende, Bamugemereire & Mulvagonia JJA

# CRIMINAL APPEAL No.0403 OF 2017

## JASPER OKELLO::::::::::::::::::::::::::::::::::

### VERSUS

### UGANDA :::::::::::::::::::::::::::::::::::

(Appeal from the decision of Dr. Winifred Nabisinde in High Court Criminal Session Case No.0403 of 2017 at Lira dated on 29<sup>th</sup> May 2015)

Criminal Law – Murder C/s 188 and 189 of The Penal Code 15 Act – Sentence to Life imprisonment-illegal sentence -Harsh and excessive sentence.

# JUDGMENT OF THE COURT

#### Introduction 20

The appellant, JASPER OKELLO was indicted for the offence of Murder contrary to sections 188 and 189 of the Penal Code Act, Cap 120 Laws of Uganda. He was convicted as charged and sentenced to life imprisonment.

# Background

The brief background to this case is that on the $25<sup>th</sup>$ day of March 2012 at Baropok 'B' village in the Apac District the appellant assaulted the deceased Simon Ekwaro by hitting him on the head with a club. He then ran away. An alarm

was raised which attracted family members. When they arrived at the scene. Simon Ekwaro who was still breathing, up to that point, named the appellant as the assailant who accosted him with a club. The deceased subsequently passed

- on and the matter was reported to the police. The appellant $5$ handed himself over to the police and was arrested and charged. The appellant was convicted and sentenced to life imprisonment. The appellant being dissatisfied with the sentence appealed to this court against sentence only on two - grounds, specifically that; 10 - 1. The Learned trial Judge erred in law when she passed an illegal sentence in the circumstances whereby, he imposed a jail term of life imprisonment without taking into consideration the period spent on remand which occasioned a miscarriage of justice. - 2. The Learned trial Judge erred in law and fact when she imposed a sentence which in the circumstances was manifestly excessive and very harsh which occasioned a miscarriage of justice.

At the hearing of the appeal, the appellant was represented by Mr. Walter Okidi Ladwar while the respondent was represented by Mr. Simon Peter Semalemba Assistant DPP. The appellant was physically present in court. Both counsel

relied on written submissions which shall be considered by

this court.

### Submissions for the Appellant

Counsel for the appellant faulted the Learned trial Judge for not specifying and deducting the period spent on remand.

- Counsel also faulted the Learned trial Judge for not $5$ considering the mitigating factors in favour of the appellant hence arriving at the sentence of life imprisonment, which in his considered view, was illegal, harsh and excessive. Counsel relied on Abaasa Johnson and Another v Uganda - CACA No.33 of 2010 in which case the facts in were graver $10$ than the matter now before this court. This court reduced the sentence of life imprisonment to 35 years in prison and emphasized the need for consistency while sentencing.

In view of **Abaasa**, it was the appellant's prayer that his

appeal be allowed, and the sentence set aside and substituted 15 for an appropriate one.

### Submissions for the Respondent

On the other hand, the respondent argued that the life sentence passed was neither illegal nor harsh and excessive. 20 He relied on Kaddu Kavule Lawrence v Uganda SCCA No.72 of 2018 where the Supreme Court cited Magezi Gad v Uganda SCCA No.17 of 2014 with approval emphasizing that time spent on remand is not applicable to life sentences.

Counsel further contended that the Learned trial Judge took 25 into consideration the mitigating factors and aggravating factors and arrived at an appropriate sentence that was

neither harsh nor excessive. Counsel for the respondent then invited the court to dismiss the appeal and uphold the sentence.

#### Consideration of Court. $5$

The duty of this court as a first Appellate Court was stated in the case of Kifamunte Henry v Uganda SCCA No. 10 of 1997 where court held that:

"The first appellate court has a duty to review the evidence

of the case, to reconsider the materials before the trial judge 10 and make up its own mind not disregarding the judgment appealed from but carefully weighing and considering it." Rule 30(1)(a) of the Judicature (Court of Appeal Rules)

Directions, S. I 13-10, See also; Fr. Narcensio Begumisa &

- 15 Ors v Eric Tibebaaga SCCA No.17 of 2002, The Executive Director of National Environmental Management Authority (NEMA) v Solid State Limited SCCA No.15 of 2015 (unreported) and Pandya v R [1957] EA 336. - We are mindful of the above principles and shall resolve both 20 grounds simultaneously as they both tackle the sentence imposed on the appellant.

In the appellant's first ground of appeal, he faulted the Learned trial Judge for sentencing the appellant to a sentence of life imprisonment without putting into 25 consideration the time spent on remand. We are guided by the Supreme Court decision in of Kaddu Kavule Lawrence v Uganda SCCA No.72 of 2018 as relied upon by the respondent. In **Kaddu**, the appellant was initially sentenced to death. He appealed to Court of Appeal. His sentence was reduced to life imprisonment. The appellant then appealed to the Supreme Court on the ground that the sentence of life imprisonment was illegal given that it did not provide room for the Court of Appeal to take into account the time the appellant had spent on remand which is mandated by Article 23(8) of the Constitution. The Supreme Court relied on the

holding in Magezi Gad v Uganda (supra), in verbatim, 10

> "we are of the considered view that like a sentence for Murder, life imprisonment is not amenable to Article $23(8)$ of the Constitution. The above article applies only where sentence is for a term of imprisonment i.e., a quantified period of time which is deductible. This is not the case with life-or-death sentence".

The appellant was convicted of the offence of murder and was sentenced to life imprisonment. In as far as Article $23(8)$ is concerned, the sentence of life imprisonment has been 20 found to be irresponsive. The requirements of Art. $23(8)$ cannot be applied to it therefore it is inconceivable that a sentence of life imprisonment could be subjected to the requirements of Art. $23(8)$ . We find that the sentence of life imprisonment was not and is therefore not illegal and did not 25 occasion a miscarriage of justice for failure to take into consideration the period spent on remand. The sentence was

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legal and the failure of the learned trial Judge to deducted time spent on remand did not vitiate the sentence. Ground No.1 of this appeal fails.

- In respect of the alternate ground of appeal, that the learned $5$ trial Judge passed a harsh and excessive sentence; this court is mindful of the possible risks associated with alteration of a sentence imposed by the sentencing judge. We follow the principles laid down by the Supreme Court in Kamya Johnson Wavamuno v Uganda SCCA No.16 of 2000. "... it is 10 - well settled that a court of appeal will not interfere with the exercise of discretion unless there has been a failure to take into account a material consideration, or an error in principle was made." See also; Kiwalabye Bernard v Uganda CACA - No.143 of 2001, Sekandi Hassan v Uganda SCCA No.25 of 15 2019, Livingstone Kakooza v Uganda SCCA No. 17 of 1993 [unreported] and Jackson Zita v Uganda, SCCA No. 19 of 1995. - When the learned trial Judge sentenced the appellant to life 20 imprisonment, her sentencing remarks read as below:

"There are no previous known records against him; this court will therefore treat him as a first offender. I have noted that in such a case, the maximum sentence would have been the death penalty; however, I find that in this particular case it will not sever the ends of justice. That being the case, I have also taken into account the

almost 3 years 2 months the convict has spent on remand and the age of the deceased and the convict. The convict is indeed a relatively young man with children; however, his actions are a very bad example to society and out to be punished accordingly. One wonders if he could do that to his own father what he would have done if he had a dispute with a total stranger. While the maximum sentence in this case is the death penalty, taking into account the circumstances of this case and for the reasons given above, I find that such a person should spend the rest of his natural life in prison. I therefore sentence him to a sentence of Imprisonment for Life as appropriate and just in the circumstances."

15 From the above reasoning, it is evident that the learned trial Judge considered both mitigating and aggravating factors before passing her sentence.

We shall take a look at the ranges of sentences for similarly placed appeals before determining if the sentence passed was 20 harsh and excessive. We remain persuaded by the need for courts to take into consideration parity, uniformity and consistency while sentencing as seen in Aharikundira Yusitina v Uganda SCCA NO.027 of 2015, the Supreme Court held that. 25

> "There is a high threshold to be met for an appellate court to intervene with the sentence

handed down by a trial judge on grounds of it being manifestly excessive. Sentencing is not a mechanical process but a matter of judicial discretion therefore perfect uniformity is hardly possible. The key word is "manifestly excessive". An appellate court will only intervene where the sentence imposed exceeds the permissible range or sentence variation".

To determine the sentencing range for the offence of murder. we follow precedents with similar facts, some of which 10 include Mbunya Godfrey v Uganda SCCA No.004 of 2011. where the Supreme Court set aside the death sentence imposed on the Appellant for the murder of his wife and substituted it with a sentence of 25 years imprisonment.

- 15 In Tusigwire Samuel v Uganda CACA No.53 of 2016, this court found the sentence of life imprisonment imposed against the appellant for the offence of murder harsh and manifestly excessive and reduced the sentence to 30 years' imprisonment. - Tumwesigye Anthony v Uganda CACA No.46 of 2012 this 20 court substituted the sentence of 32 years' imprisonment with that of 20 years for the offence of Murder. In Onyabo Bosco v Uganda CACA No.737 of 2014, the appellant was indicted and convicted of the offence of Murder and sentenced to 45 years imprisonment. On appeal, this court reduced the 25 - sentence to 20 years' imprisonment for the offence of Murder.

In Attorney General v Susan Kigula & 417 Ors (supra), this court reduced the death sentence imposed on the appellant to 20 years' imprisonment. In Ntambi Robert v Uganda CACA No.334 of 2019, this court found a sentence of 20 years for the offence of Murder neither harsh nor excessive.

In view of the sentencing trend above, we have examined the sentence of life imprisonment and find it to be harsh and excessive, in the circumstances. Had the learned trial Judge paid attention to the antecedents of the appellant, that he $10$ was a vouthful offender who handed himself over after committing the offence, she would not have passed a harsh and excessive sentence against the appellant. We set aside the sentence of life imprisonment.

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We now invoke the powers of this court under section 11 of the Judicature Act to pass an appropriate sentence. Having evaluated both aggravating and mitigating factors and we hold the view that a sentence of 20 years imprisonment is appropriate. From this we deduct a period of 3 years 2 months and 24 days that the appellant spent on remand. In the result, the appellant is to serve a period of $16$ years, 9 months and 6 days in prison from the date of conviction which is the $29$ <sup>th</sup> of May 2015.

Dated at Kampala this ....................................

$\varphi$ .

FREDRICK EGONDA NTENDE, 10 **JUSTICE OF APPEAL**


**CATHERINE BAMUGEMEREIRE,** $20$ JUSTICE OF APPEAL

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**NEMULYAGONJA, JA** HON. LADY JUSTICE IRE JUSTICE OF APPEAL