Olanya & Another v Uganda (Criminal Appeal 683 of 2015) [2025] UGCA 31 (13 February 2025)

## <sup>5</sup> THE REPUBLIC OF UGANDA

# IN THE COURT OF APPEAL OF UGANDA AT GULU

[Coram: Egonda-Ntende, Tibulya & Kazibwe, JJAJ

# CRIMINAL APPEAL NO. 0683 OF 2015

# r. OLANYA RICHARD

# <sup>10</sup> 2. AYATJOYCE .. APPELLANTS

#### VERSUS

UGANDA ........... RESPONDENT

(An appeal arising from the decision of the High court of uganda at Gulu in Criminal session Case No. 0356 of 2014 before Keitirima, J & Mutonyi, Jdated 25th August,2014 and l5th March,2016)

### JUDGMENT OF THE COURT.

This is an appeal against sentence only. The appellants were indicted and convicted ofthe offence ofmurder contrary to sections 188 and 1g9 ofthe penal code Act. The particulars of the offence were that on l3th January 2014 atLabworomon village, Lakwana Sub county in Gulu District, the appellants murdered odong Alfred.

#### Background.

The facts as admitted by the appellants are that on the l3rh or J anuary 2014 at around 7:00 am, while the deceased was slashing grass near his home, the first appellant who was his brother appeared with a spear, a hoe and an axe and fought him. The

deceased and his wife held the first appellant and removed the spear from him. The first appellant ran away but returned with the axe which he used to hit the deceased on the head thrice. During the fight the second appellant who is wife to the

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firstappellantwenttothescenearmedwithaclub,withwhichhitAlobo(wifeto the deceased) on the right shoulder She then hit the deceased on the head and he fell 30 down unconsctous.

Thedeceased,swiferaisedanalarmtowhichokiyaDavidresponded.okiyafound the first appellant hitting the deceased, but when he saw him' he ran away with the axe.okiyatogetherwiththedeceased'swifetookthedeceasedtothehospitalfor treatment'Thedeceased,however,laterdied. Thematterwasreportedtopolice. Both appellants were charged'

on the 25th of August 2014, at the commencement of the trial the first appellant pleadedguiltytothechargesbeforeKeitirima,J'Hewassentencedto20years' 40 imprisonment.

Onthel6thofMarch20l6,thesecondappellantpleadedguiltybeforeMutonyi'J and was also sentenced to 20 years' imprisonment'

Dissatisfied with the Sentence, the appellants appealed to this court on the following 45 ground: -

The learned trial Judges erred in law and fact when they sentenced the appellantsto20(Twenty)yearsimprisonmentwhichsentencewasillegal' manifestly harsh and excessive in the circumstances'

#### Representation.

ss At the hearing, the appellants were represented by Mr. Simon peter ogen Rwot while the respondent was represented by Ms. Sherifah Nalwanga, a chief State Attorney.

#### Submissions by Counsel.

In respect to the 2nd appellant, counsel for the appellants submitted that the sentence of 20 years is illegal. counsel argued that the learned judge did not consider the provisions of Article 23(8) of the constitution which is to the effect that where <sup>a</sup> person is convicted and sentenced to a term of imprisonment for an offence, any period he or she spends in rawfur custody in respect of the offence before the completion of his or her trial shall be taken into account in imposing the term of im prisonment.

He relied on Rwabugande Moses vs. uganda I20r7l UGSC g, for the proposition that the period which a convict spends on remand must be considered and arithmetically deducted from a custodial sentence. He also cited Africa wycliff & another vs uganda [2023] UGCA 2g4 in which this court found that the triar judge had not considered the requirement under Article 23(g) of the constitutior, when he sentenced the first appellant to 18 years' imprisonment, the period on remand inclusive.

Counsel further submitted that the learnedjudges in their respective sentences failed to properly weigh the mitigating factors that were brought to their attention. It was argued that the sentences of 20 years meted out to each of the appellants was harsh and excessive given the fact that the Appellants were first offenders who had pleaded guilty. He relied on okeilo David Kakembo vs. Uganda 120241UGCA 216, in which like the judges in the instant case, the sentencing judge stated that,,r have

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heardboththeaggravatingandmitigatingfactors. Muchastheconyictpleaded guitty, his actions were gruesome and unprovoked. It is the most terrifying way to cause one,s death. The convict,s actions call for deterrence. I have considered the period the convict had spent on remand, and I will now sentence him to 25 years in prison,,. ItwasheldthatthetrialJudgedisregardedthefactthattheAppellant pleadedguiltywhichwouldhavebeenconsideredasamitigatingfactorandinstead imposed a severe sentence upon him' 80

Counselalsofaultedthetrialcouftonthebasisthatitdidnotconsidertheprinciple ofconsisfencywhilesentencingtheappellants. Insupportofthisargument,hecited Guideline6(c)oftheSentencingGuidelinesandthecaseofAharikundiraYustina VsUganda[20l8lUGSC4gforthepropositionthatitisthedutyofthecourtwhile dealingwithappealsregardingsentencingtoensureconsistencywithcasesthathave similar facts.

95 lnreply,counselfortherespondentconcededthatthelearnedjudgedidnotconsider the period spent on remand in respect of the 2"d appellant. She submitted that in light ofthesupremecoufidecisionsKizitoSenkulavsUganda[2002|UGSC36and Rwabugande Moses vs Uganda (supra), the sentence of 20 years is illegal in the circumstances.

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Counsel however, opposed the appeal on the issue of the sentences being harsh or excessive. she submitted that the sentences of 20 years are within the sentencing range of sentences for the offence of murder whose starting point under the sentencing guidelines is 35 years to death'

Counsel further submitted that the learned judges considered all the material factors before sentencing the appellants and that this court has no basis for interfering with their discretion. She contended that this court and the Supreme court have imposed similar and even higher sentences in cases of murder. In this regard, she cited Batesa

- 110 Malijani vs uganda [20191 UGSC 17 in which the appellant pleaded guilty to three counts of murder. He was sentenced to 20,25 and 30 years, imprisonment on each count of the three counts. The court of appeal reduced the sentences to 14 years,g months and l0 days imprisonment on each of the three counts, with an order that the sentences run consecutively. The supreme court upheld the above sentences. - 115 In Nalule Sarah vs uganda, CACA No.0003 of 20l3,this court upheld a sentence of 25 years' imprisonment for an appellant who had pleaded guilty to murder. In Muhangi Moses vs Uganda [2023] UGCA 49, this court upheld a sentence of <sup>25</sup> years' imprisonment even when the appellant had pleaded guilty to murder.

#### L20 Consideration of the appeal.

As an appellate court, we can only interfere with a sentence which is either illegal, or founded on a wrong principle of the law, or when it results from the trial court's failure to consider a material factor. we may also interfere when a sentence is harsh and manifestly excessive in the circumstances of the case. See Kiwalabye Bernard

725 v Uganda, Supreme Court Criminal Appeal No. 143 of 2001.

The 2nd appellant's complaint is that the learned judge failed to consider her remand period.

130 counsel for the Respondent concedes to this submission, and rightly so. This is because the leamed judge did not ascertain the period which the 2nd appellant had

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spent on remand and did not therefore take that period into account in determining the appropriate sentence.

13s In relation to the 1't appellant, the lower courts sentencing notes indicate that the leamed judge did not consider the period which he had spent on remand. For that reason, the sentence imposed on him is also illegal'

Based on the foregoing, we allow the appeal, set aside the sentences imposed on both appellants. We proceed to sentence them as below'

t40 We invoke the powers of this court under section I I of the Judicature Act to sentence the appellants.

It was submitted in mitigation that the appellants were first offenders. They pleaded guilty, which indicates that they were remorseful. Both appellants were in their youthful ages of 27 and 23 respectively and hence are capable of reform. we shall take all these factors into account'

150 On the other hand,, we note that the appellants committed a serious offence which attracts a maximum sentence of death. They committed it in a brutal manner- We have considered the impact assessment statements on record, in which the family and clan members spoke about the negative impact the offence had on the family. The family and clan members requested that the second Appellant be sentenced to <sup>20</sup>years imprisonment which was what her husband had been sentenced to. We also note that the offence resulted from a land wrangle, and that it should have been <sup>155</sup> resolved in a civil manner'

We have considered the need for consistency in sentencing, and looked at similar cases of murder,, such as Anguyo Robert vs Uganda [20161 UGCA 39. In Anguyo 160 (supra), the appellant killed his uncle with a hammer. He was convicted on his own plea of guilty and sentenced to 20 years' imprisonment. on appeal, this court found that the remand period had not been considered, and the court imposed a sentence of I 8 years' imprisonment.

165 In Tom Sande vs Uganda [2014] UGCA ll, this court confirmed a sentence of lg years for the appellant who had pleaded guilty for the offence of murder.

we have considered the aggravating and mitigating factors as laid out above, and the need for consistency in sentencing. we think that the sentence of 1g years' imprisonment for each of the appellants is appropriate in the circumstances of this L70 case.

we deduct the remand periods of 8 months for the I't appellant, and,2 years and <sup>2</sup> months for the 2nd appellant, from the 18 years for each Appellant.

1,7 5 The 1't appellant shall therefore serve l7 years and 4 months, imprisonment from the date of his conviction which is 25th August 2014.

The 2nd appellant shall serve 15 years and 10 months'imprisonment from the 15th of March 2016.

180 We so order.

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this. $\frac{1}{2}$ **Kampala** delivered $at$ dated and Signed, 185 $\frac{1}{1}$

**Fredrick Egonda-Ntende**

**Justice of Appeal**

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> **Margaret Tibulya Justice of Appeal**

$\cdots$

**Moses Kazibwe Kawumi**

**Justice of Appeal**

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