Omolo and 3 Others v Uganda (Criminal Appeal 133 of 2018) [2024] UGCA 275 (8 April 2024)

### THE REPUBLIC OF UGANDA

## IN THE COURT OF APPEAL OF UGANDA AT MBALE

[Coram: Egonda-Ntende, Gashirabake & Kihika, JJA]

### CRIMINAL APPEAL NO. 133 of 2018

(Arising from High Court Criminal Session Case No.0130 of 2013 at Tororo)

#### BETWEEN

| Omolo Martin= | $=$ Appellant No.1 | |------------------|-------------------------------| | Okany Daniel= | =Appellant No.2 | | Nangira Clement= | =Appellant No.3 | | Ouma Mark Owino | =Appellant No.4 $\frac{1}{2}$ |

#### AND

Respondent

Uganda=

(An appeal from the decision of the High Court of Uganda [Kawesa, J] at Tororo delivered on 12<sup>th</sup> May 2017)

#### JUDGMENT OF THE COURT

#### **Introduction**

This is an appeal against sentence only. The appellants were convicted of the $[1]$ offence of murder contrary to sections 188 and 189 of the Penal Code Act on 11<sup>th</sup> May 2017 by the High Court of Uganda (Kawesa, J.,) sitting at Tororo. The particulars of the offence of murder were that on 7<sup>th</sup> October 2012 the appellants with another person at Namayemba Bar and lodge located at Sofia village in Busia Municipality, Busia district caused the death of Gimunvanyi Samuel alias Mudibo Sam Masurubu. The learned trial judge sentenced them to a term of 18 years' imprisonment.

Dissatisfied with that decision the appellants have appealed against the $[2]$ sentence on the sole ground,

$\mathcal{L}$

'That the learned trial judge erred in law and fact when he failed to offset the period spent on remand by the appellants thereby passing an illegal sentence occasioning miscarriage of justice.'

The respondent conceded to the appeal. $[3]$

# **Facts of this Case**

- A one Ocen Isaac was seen on 4<sup>th</sup> October 2012 at 7:00 p.m. moving with a $[4]$ gun at Sofia A Village, Busia Municipality, in Busia District. He made calls to appellant no.1 and the deceased at 7:14 p.m. and at 7:30 p.m. respectively. The deceased was shot dead at Namayemba Bar. This was reported to the police, who visited the scene of the crime and found the body of the deceased in a pool of blood with bullet wounds. The police recovered three cartridges of bullets from an AK-47 gun and two projectiles from the bullets. The appellants no.1, and no.4, and Ochen Isaac went to hide in Kenya. Ochen Isaac and the appellant no.2 were arrested at about 11:00 a.m. by Kenyan police who handed them over to the Busia Police Station. Appellant no.1 escaped and was re-arrested on 12<sup>th</sup> October 2012. Upon interrogation of Ochen Isaac and appellant no.1, they led the police to Sofia A Village, Busia Municipality in Busia District, where they recovered an AK47 gun serial N0. 56-3 1005676 with seven (7) rounds of ammunition, from the home of appellant no.1. - The appellants and Ochen Isaac were charged and remanded in prison. $[5]$ However, Ochen Isaac attempted to escape from prison, and was shot in the left leg and eventually succumbed to the gunshot injury. - The appellants were tried and convicted of the murder of Gimunyanyi Samuel, [6] alias Mudibo Sam Masurubu.

# **Submissions of Counsel**

The appellants were represented by Mr. Muhammad Mbalire. The respondent $[7]$ was represented by Mr. Aliwali Kizito, Senior State Attorney, in the Office of the Director of Public Prosecutions. Both counsel filed written submissions upon which this appeal proceeded.

- Counsel for the appellants submitted that the sentence imposed upon the [8] appellants by the learned trial judge was illegal. He referred to Kyalimpa Edward v Uganda Supreme Court Criminal Appeal No. 10 of 1995 (unreported) in support of his submissions with regard to the power of a first appellate court to interfere with a sentence of the trial court. He stated that the trial judge took note of the period the appellants had spent on remand but failed to deduct the same from the sentence imposed. - Counsel referred to the case of Rwabugande Moses v Uganda, [2017] UGSC [9] 8 where court stated that taking into account of the period spent on remand by a court is necessarily an arithmetical exercise. He relied on Nashimolo Paul Kibolo v Uganda, [2020] UGSC 24 where the Supreme Court emphasised that courts should follow the principle in Rwabugande. Counsel concluded by submitting that the sentence of 18 years is illegal for failure to make arithmetic deduction of the period spent on remand. Counsel prayed we substitute the sentence imposed by the trial judge with an appropriate one and subtract the period spent on remand.

In reply counsel for the respondent conceded to the fact that the trial judge did $[10]$ not subtract the period the appellants spent on remand from the sentence imposed, as is required under Article 23(8) of the Constitution. Relying on Uganda v Rwabugande Moses, [2017] UGSC 8 and Nashimolo Paul Kibolo y Uganda, [2020] UGSC 24 he prayed that this court imposes a legal sentence.

[11] In support of his case, counsel for referred this court to Bulila Christiano & Anor v Uganda, Supreme Court Criminal Appeal No.16 of 2015 where the appellants were convicted of murder and sentenced to 50 years imprisonment. On appeal the Supreme Court set aside the sentence and substituted it with 25 years' imprisonment. He prayed we deduct the period 4 years and 7 months from the sentence of 18 years imprisonment imposed by the trial court.

#### **Analysis**

It is now well settled that this court can only interfere with a sentence imposed $[12]$ by a trial court where the sentence is either illegal or founded upon a wrong principle of the law. An appellate court may equally interfere with the sentence where the trial court has not considered a material factor in the case or has imposed a sentence which is harsh and manifestly excessive in the circumstances of that particular case. See Kyalimpa Edward v Uganda,

Supreme Court Criminal Appeal No 10 of 1995 (unreported): Kiwalabye Bernard v Uganda, Supreme Court Criminal Appeal No. 143 of 2001 (unreported) and Ninsiima Gilbert v Uganda [2014 UGCA 65; and Bashir Ssali v Uganda [2005] UGSC 21.

[13] We shall set out below the sentencing order of the learned trial Judge:

#### 'SENTENCE: -

The accused are found guilty and convicted of murder. The offence calls for maximum penalty of death in the rarest of the rare of cases. The mitigations are as per the defence above. All are first offenders and all are sick, all have families. The aggravating factors are that accused persons made a plan. They executed it together. All are liable by virtue of Section 20 PCA on the principle of common intention. These facts mitigate their penalty. Being first offenders, court will move away from death sentence. It will also move away from the starting point given the circumstances of the offence. Putting remand period in mind, each accused is sentenced to a custodial sentence of 18 years' imprisonment. I so order.'

- Much as the learned trial Judge stated that he had in mind the period the $[14]$ appellants had spent on remand, he did not first determine or mention that period at all. This was supposed to be a 2 step process. The learned trial Judge, after considering all the mitigating and aggravating factors, ought to have determined the appropriate sentence. Thereafter, he ought to have determined the period spent on remand and deducted it from the appropriate sentence with resultant period being the sentence that the appellants would be ordered to serve. - As was conceded by the respondent the learned trial judge had not followed $[15]$ Rwabugande v Uganda (supra) and Nashimolo v Uganda (supra). The sentence he had imposed was therefore illegal and will be quashed accordingly. Exercising our jurisdiction under section 11 of the Judicature Act we shall now proceed to impose a new sentence. - [16] We note that the appellants spent a period of 4 years and 7 months on remand. - [17] In Livingston kakooza v Uganda [1994] UGSC 17, the Supreme Court was of the view that the sentences imposed in previous cases of similar nature do

afford material for consideration while this court is exercising its discretion in sentencing. We are duty bound to maintain consistence or uniformity in sentencing while being mindful that offences are not necessarily committed under the same circumstances.

- [18] In Amaria Michael v Uganda [2017] UGCA 93. The appellant shot the deceased dead. He was convicted of murder and sentenced to 45 years' imprisonment by the trial court. On appeal, this court set aside the sentence and substituted it with 20 years' imprisonment. - $[19]$ In Feni Yasin Alias Gais v Uganda [2020] UGCA 29. The appellant was convicted of murder and sentenced to 28 years' imprisonment by the trial court. On appeal, this court set aside the sentence and substituted it with 20 years' imprisonment.

# Decision

To arrive at the appropriate sentence, we have considered the aggravating and $[20]$ mitigating factors and find that a sentence of 20 years' imprisonment is appropriate for each of the appellants. We deduct the period of 4 years and 7 months the appellants spent in pre-trial detention. We accordingly sentence each of the appellants to a term of imprisonment of 15 years and 5 months from 12<sup>th</sup> May, 2017, the date of conviction.

Dated, signed, and delivered this $\sqrt[6]{ }$ day of

Am Bungue<br>edrick Egonda-Ntende Justice of Appeal Christopher Gashirabake

**Justice of Appeal**

Justice of Appeal

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