Olwenyi v Uganda (Criminal Appeal 3 of 2018) [2023] UGCA 205 (20 July 2023)

#### THE REPUBLIC OF UGANDA

## IN THE COURT OF APPEAL OF UGANDA AT Jinja

[Coram: Geoffrey Kiryabwire, Muzamiru M. Kibeedi, Monica Mugenyi, JJA]

### CRIMINAL APPEAL No. 003 OF 2018

(Arising from High Court Criminal Session Case No051 of 2017 at Jinja)

#### **BETWEEN**

OLWENYI ANDERIC JOSEPH....................................

AND

**UGANDA ...................................**

(An Appeal from the Judgment of the High Court of Uganda Margret Mutonyi J delivered on 19<sup>th</sup> December, 2017)

### JUDGMENT OF THE COURT

#### Introduction

The Appellant was indicted and convicted of the offence of Murder

Contrary to Sections 188 and 189 of the Penal Code Act.

#### **The Brief Facts**

The deceased on the night of the 3<sup>rd</sup> February, 2016 was abducted by three masked men while outside cooking with her grandchildren. The next day the deceased's body was recovered in a bush with multiple wounds to her head and taken to Kayunga hospital for post mortem. At the hospital it was established that the cause of death was haemorogic shock due to multiple cut wounds. About three months later, the Appellant who was in hiding surrendered himself to Kikyusa Police Station in Luwero and confessed to having murdered the deceased. The Appellant was transferred to Kayunga and when examined was found to be of sound mind. He was then charged with murder.

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# Decision of the Trial Court

At the trial, the Appellant entered into a plea bargaining agreement where he admitted all the facts and pleaded guilty for which he was convicted and was sentenced to 15 years of imprisonment.

# Leave to Appeal on Sentence only

At the hearing the Appellant sought leave under Section 132 (1) (b) of the Trial on Indictment Act

The parties sought the leave of Court to adopt their written submissions as their legal arguments in this Appeal which leave was grarted.

### Representations

At the hearing, the Appellant was represented by Ms. Joan Nakhumitsa and the Respondent by Ms. Immaculate Angutoko Chief State Attorney.

## Powers of an Appellate Court

We are alive to the duty of this court as a first appellate court as decided in the case of Kifamunte Henry V Uganda SCCA No 70 of 1997 to reappraise all the evidence at trial and come up with our own inferences of law and fact.

In thc rn.rtter of Kiwalabye versus Uganda Criminal Appeal No. 143 of 2OO1 (SC) it u,as hcld: -

"I'he appellan.t courl is tlol lo interJbre u'itlt sentence imposed l-tg n trial courl trthicLr Irus exer<:ised lt.s rlisc'relion on senlence unless lhe exercise o.[ the discreliort i.s .suc/r that il results irt thc senlertce imposecl to bc rnan.ifcstlg elce.s.sirre or so k>tu us lo utnololl to a tniscarriugle oJ'jttstice or uthere (t triol cottt ignores to consicler rnr intporlunl matler or cirrumslonces uhich ougthl lo be cortsi<lererl u,hert pttssittlJ tlt? sentence or utlrcre the senlence intposed is urnntg in pinciple"

## Arguments of the Appellant

Counsel for the Appellant argued that in sentencing the Appellant, the trial Court did not take into account the period the Appeliant had taken on remand as required under Article 23 (8) of the Constitution. We were referred to the case Rwabugande Moses V Uganda SCCA No 25 of 2Ol4 where it was held that: -

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"A sentence arrived at without taking into consideration the period spent on remand is illegal for failure to comply with the mandatory constitutional provisions..."

Counsel prayed that this court upholds the Appeal and use its powers under Section 11 of the Judicature Act and deduct the time the Appellant spent on remand before conviction and sentence of 1 year and 7 months.

## **Arguments of the Respondent**

Counsel for the Respondent conceded that Article 23 (8) of the Constitution was contravened.

Counsel further submitted that the Court invoke its powers under Section 11 of the Judicature Act and taking the aggravating and mitigating factors and sentence the Appellant to 30 years' imprisonment. Counsel argued that the maximum sentence for murder is death.

### Decision of the Court

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This appeal is against sentence only. We have carefully considered the submissions of both Counsel, the record and authorities availed to us; for which we are grateful.

At sentencing, the trial Court Judge at page 10 of the record held as follows: -

".... Accused is sentenced to 15 years' period of remand inclusive..."

It is evident that Article 23 (8) of the Constitution was not applied in this case and therefore the sentence meted is illegal to that extent.

We find so.

#### Resentence.

This Court in the matter of Adiga Adinani V Uganda CONSOLIDATED CRIMINAL APPEALS (Lira) NO. 635 OF 2014 & NO. 757 OF 2015 held: -

"Section 11 of the Judicature Act gives this Court all the powers, authority and jurisdiction as is that of the trial Court to impose an appropriate sentence of its own..."

In this matter which involves a plea bargain, we find that the illegality of the sentence can be cured by applying Article 23 (8) of the Constitution. Counsel Jorz

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for the Respondent while conceding the illegality however further argued for an enhancement of the sentence to 30 years' imprisonment. This prayer we find to be misguided because there is no cross appeal by the Respondent and so we decline to enhance the sentence.

Applying Section 11 of the Judicature Act to impose a fresh sentence on the Appellant we note that the Appellant had spent 1 year and 7 months on remand. Taking this period into consideration we uphold the parties 15 years' imprisonment agreed by plea bargain and adjust the final sentence to be 13 years and 5 months.

## **Final Decision**

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The Appeal is hereby allowed and we accordingly set aside the illegal sentence of 15 years and substitute it with a sentence of 13 years and 5months imprisonment effective from 19.12.2017 being the date of conviction.

### We so Order

| | 2023 | |-----------------------------------------|------| | | | | | | | | | | Hon. Mr. Justice Geoffrey Kiryabwire JA | |

Hon, Mr. Justice Muzamiru M. Kibeedi JA

Mulligery:<br>Hon Lady Justice Monica Mugenyi JA