Onen v Uganda (Civil Appeal 3 of 1991) [1992] UGSC 10 (8 December 1992)


(Appeal against sentence of High Court decision holden at Gulu (Hon. Justice Okello) dated the 29th November, 1990 from original High<br>Court Criminal Session No. 66/90)

## JUDGEMENT OF THE COURT

The appellant was indicted for the murder of the deceased, Moses Oyoo. He was tried and acquitted of the charge but convicted of the lesser offence of Manslaughter, contrary to section 182 of the Penal Code. He was sentenced to 10 years' imprisonment. He has now appealed against the conviction and, with the leave of Court, against the sentence.

There is no merit in the appeal against the conviction. On his own admission the appellant assaulted one of the thugs who attacked him on the night of 18.5.89 at his house. The attackers were armed with a hand grenade; in the circumstances he was entitled to act in self-defence. But then he went for the deceased and inflicted several severe injuries on him, which were excessive. That reduced the offence to one of Manslaughter. We agree with Counsel for the appellant that on the evidence before him this Judge ought not to have mild out the defines of self-defence.

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$- - -$ He relied on provocation only where he should have use<br>both defences to reduce the charge. Support the have use used $ACC.$

We are satisfied that the appellant $w$ rightly convicted of the manslaughter of the deceased.

With regard to sentence there can be no doubt that it was manifestly severe. The reason given for it was this:

> "The principle of sentence to reflect adequately the disposal by the majority of the public of the offence. The people of this region (Northern) no doubt denounce this type of offence and it is my duty to adequately reflect their disapproval."

With respect, we think that that was a misdirection. The learned Judge purported to speak for the people of the area which he was not entitled to do. We wonder what the people would say if they were told that the appellant had been attacked by armed thugs at night and had to fight for his life. Surely when one is attacked one is entitled to pick up and use whatever weapon is available, x We have no doubt that had the trial Judge taken these factors into account he would most probably have imposed a lesser sentence.

We accordingly allow the appeal against sentence. We set aside the sentence of 10 years and substitute therefor a sentence of seven years imprisonment,

$g^{\sharp}$ DATED at Mengo this $\frac{3}{2}$ ....day of $\frac{1}{2}$ ....................................

P

Sgd:..... S. T. MANYINDO DEPUTY C'IEF JUSTICE

$3$ gd : A. H. O. ODER JUSTICE OF SUITERING COURT

Sgd: H. G. PLATT JUSTICT OF SUITEME COTFI

I CERTIFY TI''T MUID IS TRUE CORY OF THE OPICTUAT

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