Okiru v Uganda (Criminal Appeal 97 of 2018) [2023] UGCA 333 (9 November 2023)

# THE REPUBLIC OF UGANDA IN THE COURT OF APPEAL OF UGANDA AT MBALE CRIMINAL APPEAL NO. 097 OF 2018 (Coram: Bamugemereire, Gashirabake, Kihika JJA)

## S OKIRU ISAIAH ALIAS OPOLOT :::::::::::::::::::::::::::::::::::APPELLANT

## VERSUS

UGANDA::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::RESPONDENT

(Appeal from the decision of the High Court of Uganda at Mbale before Asiimwe, J deliuered on 15 / 08 / 2018 in Criminal Session, Case llo. 0091 of 2015.) 10

## JUDGMENT OF THE COURT

## Introduction

15 20 The appellant was indicted, tried and convicted of the offence of Murder contrary to sections 188 and 189 of the Penal Code Act CAP 120 Laws of Uganda. He was sentenced to 36 years, 2 months and 15 days' imprisonment. The particulars of the offence were that Okiru Isaiah alias Opolot and others still at large on the 23,d of October 2Ot4 at Bukhalamya Village in Manafwa District murdered one Ekojot Musa.

## Background

The background facts leading to the indictment of the appellant, as ascertained from the lower court record, were that the appellant married one Josephine Amachar with whom he begot two children, Musa Ekojot,

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(the deceased) and another child. They later separated though the appellant carried on taking care of the two children. On the $23<sup>rd</sup>$ of October 2014, the appellant woke up in the night, carried his youngest child (the deceased) and took him to Nandelema stream where he strangled him to death and drowned him in the belief that the act of $\mathsf{S}$ sacrificing his own child, would lavish him with untold riches. On the $24<sup>th</sup>$ of October 2014, the appellant went to do his business in the market and when he returned at around 1:00pm, his relatives asked him where the deceased was. He responded but in an unbothered manner. An alarm from the Nandelema stream drew the attention of the community. The 10 lifeless body of the infant was found floating on the water. The people who had gathered, including the appellant, went to the stream and upon seeing the body, the appellant collapsed. He later confessed that he collapsed due to fear of reprisal. The residents attempted to lynch the appellant but he was rescued by the Local Council (LC1) leaders and 15 taken to Butiru Police Post for safe custody. Upon interrogation by the police, the appellant admitted having committed the offence. A charge and caution statement (hereinafter referred to as the statement) was recorded. The appellant was consequently indicted, tried, convicted and sentenced as aforementioned.

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Being dissatisfied with the conviction and sentence of the trial court, the appellant appealed to this Court on the following three grounds:

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1. The learned trial Judge erred in law and fact when he solely relied on the evidence of the prosecution which was marred by contradictions and inconsistencies hence causing a miscarriage of justice to the appellant.

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- 2. The learned trial Judge erred in law and fact when he ignored the appellant's alibi defense which was plausible. - 3. The learned trial Judge erred in law and fact when he sentenced the appellant to 40 years' imprisonment which sentence was termed harsh and excessive given the mitigating factors which was tendered by the causing miscarriage of justice to the appellant, appellant.

#### Representation

At the hearing, Mr. Nangulu Eddy, represented the appellant on State Brief while Mr. Ssemalemba Simon Peter, Assistant DPP appeared for the respondent. The appellant attended Court from Maluku Prison via

video link. Both parties filed written submissions which were adopted as 15 their respective arguments and have been considered in this judgment.

#### Appellant's Submissions

#### Ground No. 1

The learned trial Judge erred in law and fact when he solely relied on the evidence of the prosecution which was marred by 20 contradictions and inconsistencies hence causing a miscarriage of justice to the appellant.

Counsel for the appellant submitted that in Muligande Zyedi v **Uganda CACA No. 39 of 2013,** it was held that the offence of Murder has the following four ingredients which must each be proved beyond reasonable doubt:

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- i. The person named in the indictment is dead - ii. The death was unlawfully caused - iii. The death was caused with malice aforethought - iv. The accused participated in the death of the accused (Sic) - 5 10 15 Counsel did not contest proof of the first 3 ingredients but, took issue with the fourth ingredient which he contended was not proved. He submitted that none of the prosecution witnesses directly saw the appellant strangle the deceased and dump his body in the stream, arguing that there was no eyewitness account on the court record to that effect. He also submitted that no scientific evidence was presented to implicate the appellant in the commission of the crime. Counsel asserted that the only evidence the trial court relied on to convict the appellant is a retracted confession and nothing more. He relied on Mumbere Julius v Uganda SCCA No. 15 of 2014 for the proposition that a trial court should only accept a confession which has been retracted or repudiated with extreme caution and, before founding a conviction on such <sup>a</sup> confession, the trial court must be fully satisfied that in all circumstances of the case that the confession is true. - Counsel submitted that the statement PWB recorded was inadmissible because it was not obtained in accordance with the law and so it was erroneous for the learned trial Judge to rely on it to convict the appellant. He argued that the circumstances under which the appellant was alleged to have admitted committing the offence was a hostile one, where he was apprehended by a crowd of residents who were aggressively demanding that he discloses the whereabouts of the deceased or else he would be 20 25

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assaulted. He further submitted that apart from the inadmissible statement, there was no other evidence against the appellant. He also faulted the learned trial Judge for relying on circumstantial evidence and drawing an inference that the appellant was guilty by his conduct of not being shocked by the news of the death of his son. According to counsel, the evidence was based on mere suspicion and should not have been relied on. He prayed this Court to find that the learned trial Judge erred in law and fact in convicting the appellant.

## Ground No.2

#### The learned trial Judge erred in law and fact when he ignored the appellant's alibi defence which was plausible. 10

Counsel submitted that the burden of proof rests entirely on the prosecution to prove each and every ingredient of the offence beyond reasonable doubt and that a conviction shall not be premised on the weakness of the defence evidence but the strength of the prosecution case. He added that where a defence of alibi is raised, the burden to place the accused at the scene of crime still remains with the prosecution. He relied on the evidence of the appellant who testified that on the fateful dry, he left home early in the morning, when the children were still asleep, to go and sell cabbage in the market and when he returned at 1:00pm, he was accosted by the mob which accused him of the murder of his son. It was further submitted that the prosecution did not lead any evidence to place the appellant at the scene of crime and that no one from the market was ever called to disprove his defence of alibi. Counsel also pointed out that the appellant resided with his family but none of them

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was called to testify. He also opined that the evidence of PWl was basically hearsay and invited this Court to answer this ground in the affirmative.

## Ground No.3

- 5 The learned trial Judge erred in law and fact when he sentenced the appellant to 40 years' imprisonment, which sentence was termed harsh and excessive given the mitigating factors which were tendered by the appellant hence causing a miscarriage of justice to the appellant. - Counsel submitted that the sentence against the appellant was harsh and excessive. It was pleaded for the appellant in mitigation that he was a first offender aged 28 years and was able to reform and still be resourceful to the community and therefore he deserved a reformative sentence; he was a sole bread winner. Counsel faulted the learned trial Judge for ignoring those mitigating factors when he sentenced the appellant to a harsh custodial term of 36 years, 2 months and 15 days. Counsel urged this Court to allow the appeal, quash the conviction and set aside the sentence in the interest of justice and fairness. 10 15

### Respondent's Submissions

On ground 1, counsel for the respondent submitted that the learned trial Judge properly relied on the appellant's statement which was amply corroborated by other evidence and properly convicted the appellant. Further, that the statement was properly admitted by the learned trial 20 Judge, PW3 having clearly testified tffat it was re corded in a free

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environment without any torture or threat to the appellant. Counsel contended that the learned trial Judge in his ruling in the trial within a trial, rightly found that the statement was properly obtained and therefore he cannot be faulted for his findings. It was further submitted for the respondent that PW3 at the time of recording the statement was at the rank of Detective Assistant Inspector of Police and therefore eligible to record the statement in accordance with the requirements of S.23 of the Evidence Act.

On the alleged contradiction on the date the statement was recorded, counsel submitted that it was evident from the record that PWB testified that the appellant was brought to Butiru Police Post on the 2417012074 and he recorded the statement on the 251L0120214 whtch was also the date indicated in the statement itself (Exhibit PE3). He then submitted that there is no contradiction as alleged. 10

On ground 2, counsel submitted that based on the prosecution evidence adduced before the lower court, the appellant was squarely placed at the scene of crime and that the learned trial Judge rightly rejected his defence of alibi. Counsel alluded to the content of the statement in which the appellant stated that on the night of 23.d and 24th October at about 11:00pm, he picked the deceased from his home and took him to the stream where he killed him and threw him in the water. He asserted that this evidence was corroborated by the evidence of PW1, PWz and exhibit P2 which was that the deceased was killed first and then his body thrown in the stream. Counsel added that the evidence of PWl and PW2 indicated that on interrogation, the appellant could not give a reasonable 15 20 25

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explanation as to the whereabouts of the deceased and that when the body of the deceased was discovered in the stream, the appellant attempted to run away.

As regards Ground No. 3, it was submitted for the respondent that the sentence of 40 years' (we suppose counsel meant 36 years, 2 month and 15 years) imprisonment was neither harsh nor excessive and that it is evident from the record of proceedings that the learned trial Judge considered both the mitigating and aggravating factors before sentencing the appellant.

- Counsel further submitted that the learned trial Judge took into account the fact that the appellant had sacrificed his own child for wealth which was an aggravating factor. He referred this Court to the case of Kato Kajubi v Uganda, Supreme Court Criminal Appeal No. 20 of 2014 UGSC 57, where the appellant who sacrificed a 1,Z-year-old boy for wealth was sentenced to life imprisonment. On appeal to the Supreme Court, the sentence of life imprisonment was found to be neither harsh nor excessive and upheld. He then submitted that the sentenced imposed on the appellant by the learned trial Judge was nether harsh nor excessive in the circumstances. He prayed that the appeal be dismissed and the sentence against the appellant be upheld. 10 15 - 20

## Resolution by the Court

We have carefully considered the three grounds of appeal, the submissions of counsel and the authorities cited to us. We are alive to our duty as a first appellate court to reappraise the evidence adduced at the

<sup>8</sup> M c^"d-\ <sup>M</sup> trial court and subject it to a thorough and fresh scrutiny to enable us to arrive at our own decision. As we do so, we are mindful and make due allowance for the fact that we neither saw nor heard the witnesses testify. See Pandya v R [1957] EA 336, Selle and Another v Associated Motorboat Company [1968] 123 and Kifamunte Henry v Uganda;

Ground No.1

SCCA No. 10 of 1997.

10 The learned trial Judge erred in law and fact when he solely relied on the evidence of the prosecution which was marred by contradictions and inconsistencies hence causing a miscarriage of justice to the appellant.

Counsel for the appellant only contested the fourth ingredient of the offence of murder on participation of the appellant in the crime. He argued that there was no credible evidence on the record implicating the appellant and maintained that none of the witnesses actually saw the appellant strangle the deceased and damp him in the stream. Counsel contended that the only evidence the trial court relied on to convict the appellant was a retracted confession. He argued that the confession was not lawfully extracted because it was procured under circumstances of violence, force and threat. Further, that the police officer who extracted it was not of or above the rank of Assistant Inspector of Police. He also asserted that there was a contradiction in the dates on the statement as recorded.

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On the other hand, counsel for the respondent submitted that the learned trial Judge properly relied on the appellant's confession which was amply corroborated by other evidence and properly convicted the appellant. He averred that PW3, the Police Officer who recorded the statement stated

5 that the environment was devoid of any torture or threat to the appellant. He added that PWB was eligible to record the statement as he was then at the rank of Detective Assistant Inspector of Police. As regards the alleged contradiction on the dates of recording the statement, counsel submitted that the evidence of PWS is compelling. The evidence was that the appellant was brought to Butiru Police on the 24.70.2014 where he recorded a statement on the 25.10.2014. 10

We have found a disconnect between Ground No.1 as framed, moreover in general terms, and the arguments advanced to support it. Whereas the ground faults the learned trial judge for relying on the evidence of the prosecution that was marred by contradictions and inconsistencies, the arguments basically fault the trial court for relying on a retracted confession as contained in the statement. The only contradiction alluded to in the submissions is in regard to the date the statement was recorded. Ordinarily, we would have been inclined to strike out this ground of appeal. We shall however, consider that appeal on the ground of inconsistency in the interest of justice. We must however caution counsel that care and regard has to be had in the manner in which they formulate grounds of appeal. AIso the arguments they advance to support the grounds must relate to the manner in which the ground is formulated. . 15 20

RuIe 86 of the Judicature (Court of Appeal Ru1es) Directions is very 25

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instructive on the content of Memorandum of Appeal. Counsel should endeavour to comply with the Rules of this Court.

Turning to the complaint about the statement, we have studied the record and we note that during the trial within a trial, PW3 who testified as PW1 stated that he recorded the statement in an environment that was free from torture, threat or any form of violence on the appellant. On the other hand, the appellant stated as follows:

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"I was beaten in the village by the residents. I was taken in a bad condition. I was cut on the head by use of axe in the village. At police I had covered the head with my shirt. The wound was on top middle 10 part of the head. After a day at police I was asked whether I knew anything about this case I denied. At police there a different person who took my statement but not the one in court. I have seen this PWI for the 1<sup>st</sup> time. The one who took my statement is slender and he is not the one who took me to Butiro Hospital plus two LDU's for 15 treatment... On the way the police officer beat me up and taken to (sic) Butiru Police station when I was forced to sign the statement and later I was taken to Mayenze police station where I stayed for 3 days. I was told that if I don't tell the truth I would be beaten. I was again given another document to sign on the day I was brought 20 to court.'

The appellant's evidence points out salient points things, namely that: he was beaten by the villagers and badly injured; he police officer who took him to Butiru Police Station also beat him while on the way there; It was $25$ another police officer and not PW3 (PW1) in the trial within a trial) who recorded his statement and that he had never seen PW3 before; he was

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threatened that if he did. not tell the truth he would be beaten and finally that he was forced to sign the statement.

5 The learned trial Judge evaluated the evidence adduced in the trial within a trial and ruled that the sentence was voluntarily recorded for the reasons outlined below. Firstly, that the witness who recorded the statement clearly told court that the statement was recorded in a free environment and therefore the beating or torture of the appellant which was done by his village mates and other police officers could not be attributed to PW1 who recorded his statement. Secondly, that the appellant denied having seen PWl and therefore he (PWl) could not be said to have been the one who beat him. Thirdly, that the appellant stated that he recorded a 2"d statement on the day he was first brought to court and the record indicates that the appellant first appeared in court on 3u10ll4 but the statement in issue was recorded on 25110114. This implies that the 2"d statement is different from the one in issue. Lastly, that the appellant did not deny knowing the trnglish language in which the statement was recorded. 10 15

It was the finding of the trial court that the statement was freely recorded without any force being applied to the appellant and it was accepted in evidence as P.8.3. Our re-appraisal of the evidence on record leads us to the same finding as that of the learned trial Judge for the following reasons. The appellant's evidence is clear that he was tortured by the villagers and the officer who took him to the Police Station. The appellant's evidence regarding the statement, as reproduced above, is 25

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also quite contradictory. While on the one hand he said his statement was recorded by another officer, on the other hand he said when he was taken to Butiru Police station, he was forced to sign the statement after being told that if he did not tell the truth he would be beaten without disclosing the person who said it. It is not clear from the evidence of the appellant whether it was the statement he said he made before another officer that he was forced to sign or another one which had been made earlier. He does not also state whether the use of force and threat was in respect of the first statement he made or the second one which he said he made on the day he was taken to court. We therefore find that the appellant's evidence was contradictory and incapable of proving that there was torture or use of threat or force either immediately before or during the recording of the statement that was admitted in evidence. We also do not find any contradiction on the date the statement was recorded.

<sup>15</sup> In addition, we have had the opportunity to look at the statement that was admitted as Exhibit PEB and we find therein some details about the reason for the murder that could have only come from the appellant himself. In the premises, we cannot fault the learned trial Judge for admitting the statement in evidence and relying on it to convict the appellant. Our re-evaluation of the evidence of PW1 and PW2 revealed that when the appellant was being interrogated by his relatives and the LC leaders as to the whereabouts of his child, his reaction and attitude was quite unusual since naturally he ought to have been more concerned about the whereabouts and safety of his own child. PW1 testified that when they asked the appellant where the deceased was, he told them he 20 25

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would not teII them anything even if they asked him a hundred times. When they sent for the LCl chairman the appellant'toughened'and they never succeeded in getting any information from him. PW2 on his part said when they asked the appellant where the deceased. was, he told them

5 that they should be 'less concerned' about the child because the child was not theirs but his and he asked them why they were asking him about the child who was his. PW2 added that on hearing the alarm that the child had been found, the appellant attempted to run away. When they insisted that he should go with them and they proceeded to the scene of crime with him, upon the appellant seeing the body of the deceased, he fell at his (PW2's) feet and said he was going to be killed there. 10

We find that all the above threads of evidence when strung together lead to the inference that the appellant's conduct and attitude towards the loss of his own son was not that of an innocent person. The appellant's concerns appeared to have been about his survival than the death of his son. It was the appellant's defence that he wanted to look for his lost child but people did not give him the opportunity. It was the appellant's close relatives including his father and brothers who were suspicious of him when they learnt that the deceased was lost. The appellant did not say he had any grudge with any of them to impute iII motive on their part. Death of one's child is so traumatic that it naturally ought to have affected the appellant so personally and made it apparent even to his accusers that he was an innocent man. We therefore find that the appellant's confession as contained in the statement with such details was corroborated by the evidence of his conduct as discussed above and 15 20 25

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it placed the appellant at the scene of crime. Ground 1 of the appeal therefore fails.

## Ground No. 2

## 5 The learned trial Judge erred in law and fact when he ignored the appellant's alibi defence which was plausible.

Counsel for the appellant submitted that the appellant testified that on the fateful day, he left home early in the morning when the children were asleep to go and sell cabbage in the market and when he returned at about 1:00pm he was approached by the mob that accused him of murdering his son. He contended that the prosecution did not lead any evidence to place the appellant at the scene of crime.

Counsel for the respondent, on his part maintained that the appellant made a statement which was admitted as PES, in which he stated that on the night of 23"d leading to the 24th of October 2074at about 1 1:00pm,

he picked the deceased from home and took him to the stream where he killed him and threw him in the water. He further submitted that this evidence was corroborated by that of PWl and exhibit P2 which showed that the deceased was first killed, and his body thrown in the stream. 15

Following our finding on ground 1 that the evidence on record placed the appellant at the scene of crime, we cannot fault the learned trial Judge for rejecting the appellant's defence of alibi. We must point out that the appellant's going to the market was after he had executed his evil mission of killing his son, which act he believed would gain for him the riches of this world. His going to the market was therefore just a cover up with the

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hope that no one would get to know what he had done under the cover of darkness. The defence of alibi would have only been credible if it was proved that the murder of the child took place after the appellant had left for the market but there was no such evidence on record. For the above reasons, Ground No.2 of the appeal must also fail for lack of merit.

## Ground 3

The learned trial Judge erred in law and fact when he sentenced the appellant to 40 years' imprisonment, which sentence was termed harsh and excessive given the mitigating factors which were tendered by the appellant hence causing a miscarriage of justice to the appellant.

It was submitted for the appellant that the Iearned trial Judge ignored the mitigating factors that were pleaded for the appellant when he sentenced the appellant to a harsh custodial term of 36 years, 2 months and 15 days'imprisonment. Counsel for the respondent, in expostulation, submitted that the learned trial Judge considered both the mitigating and aggravating factors before sentencing the appellant. He added that the learned trial Judge rightly took into account the fact that the appellant sacrificed his own child for wealth which was an aggravating factor. He prayed that this Court dismisses the appeal and upholds the sentence meted out by the learned trial Judge.

An appellate Court is not to interfere with a sentence imposed by the trial court in exercise of its discretion, unless the exercise of its discretion is such that the result of the sentence impoqed is manifestly excesslve or so

16& C^frEA low as to amount to a miscarriage of justice. See Kiwalabye Benard v Uganda, Supreme Court Criminal Appeal No. L42 of 2001.

We have reproduced here below and carefully analysed the sentencing ruling by the lower court to establish whether the learned trial Judge indeed ignored the mitigating factors and imposed a harsh and manifestly excessive sentence as to amount to a miscarriage of justice, as contended by the appellant.

## .. SENTENCE AND REASONS:

- I have carefully considered the submissions of both Counsel in aggravation and mitigation in this case. it's clear the aggravating factors have outweighed the mitigating factor. From the evidence on record, this is a case of child sacrifice for wealth. Life of an innocent child was taken away at a younger age of 5 years. 10 - Article 126(1) of the Constitution of Uganda provides that Judicial power is derived from the people and shall be exercised by the courts established under this Constitution in the name of the people and in conformity with the law and with values, norms and aspirations of the people. The people of Uganda therefore desire to see a peaceful society, where law and order reigns where the safety of people's lives is guaranteed and protected. The courts are therefore mandated to protect society by imposing heavy punishments against those who behave contrary to the commands of the 15 20

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Constitution. Child sacrifice for wealth is a barbaric act which need. To make matters worse, in this case the sacrifice was committed by the real father of the child. In court's view, such an action was cruel, uncivilized and inhuman. The convict is not a right and fitting person to bring up his surviving child. He deserves a longer custodial sentence which will keep him away from society to protect other children.

Considering all the circumstances of the case, I have ruled out the maximum death sentence as prayed for by the prosecution. However, I am convinced that this is a case for a heavy custodial sentence. I hereby sentence the convict to <sup>a</sup> sentence of 40 years. However, the convict is entitled to benefit from the period he has spent on remand which I calculated to be 3 years, 9 months and 15 days. I will therefore proceed to deduct the above period bringing the final sentence to 36 years, 2 months and 15 days which the convict will start serving from today." 10 15

It is evident from the above sentencing remarks that the learned trial Judge considered both the aggravating and mitigating factors that were presented before him and he found that the aggravating factors outweighed the mitigating factors. He then found the sentence of 40 years appropriate in the circumstances and upon deducting the period spent on remand, he sentenced the appellant to a term of imprisonment of 36 years, 2 months and 15 days. We therefore find no merit in the contention 20 <sup>25</sup> that the learned trial Judge did not consider the mitiga ting factors.

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As for the assertion that the sentence was harsh and excessive given the mitigating factors, we have considered the range of sentences in similar offences and circumstances so as to establish whether the sentence imposed on the appellant was indeed harsh and excessive. We are also guided by the settled principle that in sentencing there must be consistency of sentences in offences of a similar nature committed in similar circumstances as was expounded by the Supreme Court in Aharikundira Yusitina v Uganda, SCCA No. 27 of 2015.

In sentencing, courts should not only focus on the rights of the offender in disregard of the physical, emotional, psychological, mental, financial and other injuries inflicted on the victim(s), those closely associated with them and the public in general. In Busiku Thomas v Uganda, Criminal Appeal No.33 of 2011, Kisaakye JSC made the following remarks; 10

"In, my uiew, the right to a fair hearing should not only etlconlpass the rights of an accused persoru or conuicted person during the sentencin g stage. It should also encompass the rights of the uictim of the crime as well as public interest. As it was rightly obserued by the Constitutional Court of South Africa in S u Jaipal 2005(4) SA 581 (CC), Para 29 that:'The right of an accused to a fair trial, requires fairness to the accused, as well as fairness to the public as represented by the state. It has to in still confidence in the criminal justice system usith the public includin g those of those close to the accused, as well as those distressed by the audacity and horror of the crime." 15 20

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5 We have borne all those considerations in mind as we look at the range of sentences in similar offences committed in more or less similar circumstances. In Kato Kajubi v Uganda, Supreme Court Criminal Appeal No. 20 of 20L4, the appellant sacrificed a l2-year-old boy for wealth and was sentenced to life imprisonment. On appeal to this Court the sentence was upheld and on a 2"d appeal to the Supreme Court, the sentence of life imprisonment was found to be neither harsh nor excessive and upheld. In Rwalinda John v Uganda: Supreme Court Criminal Appeal No.3 of 2015, the appellant was convicted of murdering a minor in a ritual killing and sentenced to life imprisonment. On appeal, the Court of Appea1 upheld the sentence. On a second appeal, the Supreme Court also upheld the sentence stating that it was neither harsh nor excessive to warrant interfering with it. In Tomusange Lasto and Bulega Richard v Uganda, Court of Appeal Criminal Appeal No. 103 of 2015, the appellants and another who was acquitted were jointly charged with the murder of the child of the 1't appellant in what was found to be a ritually motivated killing in a quest for wealth. The 2"a appellant, Bulega Richard pleaded guilty, and he was convicted on his own plea of guilty and sentenced to 37 years and 8 months. On appeal to this Court, his sentence was found to be harsh and excessive given that he had readily pleaded guilty, was remorseful and had a family. The sentence was vacated and the appellant was sentenced afresh to 35 years' imprisonment. As for the 1.t appellant, Tomusange Lasto, he denied the offence and was tried, convicted of the murder of his own child, and sentence d to 47 years and 9 months' imprisonment. On appeal to this 10 15 20 Court, his conviction and sentence were upheld. 20M 25

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In Okwong Mungu Ronald v Uganda, Court of Appeal Criminal Appeal No. LLZ of 2016, the appellant killed the deceased by strangulation, he was charged with the offence of murder and he pleaded guilty and was sentenced to life imprisonment by the trial court. He appealed to this Court which reduced the sentence to a term of 32 years' and 8 months' imprisonment.

Guided by the above decisions especially that of Tomusange Lasto and Bulega Richard v Uganda where the circumstances were similar to those in the instant case in that both deceased infants were ritually murdered by their own fathers, and upon considering both the aggravating and mitigating factors on record, we find the sentence of 36 years, 2 months and 15 days not harsh and excessive.

In the result, the appeal against sentence is not allowed. We uphold both the conviction and the sentence and consequently dismiss the appeal for

1s lack of merit. We so order. Dated at Kampala thisY F day of,

Catherine Bamugemereire JUSTICE OF APPEAL

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