Otim and 2 Others v Uganda (Criminal Appeal No. 843 of 2014) [2022] UGCA 32 (11 February 2022)

Full Case Text

#### 5 THE REPUBLIC OF UGANDA

## IN THE COURT OF APPEAL OF UGANDA HELD AT JINJA

(Coram: Elizabeth Musoke, Cheborion Barishaki, & Hellen Obura, JJA)

CONSOLIDATED CRIMINAL APPEALS NO. 843, 844 AND 845 OF 2014

### 1. OTIM MOSES

# 10 2. MIIYOMBA ALI

3. LEMOKOL EMMANUEL :::::::::::::::::::::::::::::::::::::::::::::::::::::::::: APPELLANTS

#### VERSUS

### UGANDA :::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::: FIESPONDENT

[Appeal from the decision of the High Court of Uganda sitting at Mukono (Hon. Justice

15 Lameck Mukasa) deliuered on 15th C)ctober 2014 in Criminal Session Case No. HCT-03-CR-SC-O2 32 / 2 0 1 1, CRB: 2090/ 2O 1 O

#### JUDGMEI{T OF THE COURT

The appellants were jointly charged with the offence of murder contrary to Sections 188 and 189 of the Penal Code Act. They were tried, convicted and sentenced to 31

years for A1 and A2, and 27 years imprisonment for A3 20

The facts stated by the prosecution before the trial court were that on the 24th of December 201O at around 03OO hours, Otim Moses and Muyomba A1i came and sat at the stall of Nakafero Esteri. As she was serving them tea and chapatti, she saw Otim showing Muyomba Ali a man who was coming out of Kisumali club. Thereafter,

5 Otim cailed Lemokol Emmanuel and told him to follow the man in a blue checked shirt to wherever he was going.

It was alleged by the prosecution that on the same date Kafero Juma saw l,eniokol Emmanuel a tall Karamojong man with Muyomba Ali and otim Moses strangling the man in a blue checked shirt and blue trouser. The three were later arrested, indicted,

10 tried and convicted of the offence of murder and the l sr and 2nd appellants were each sentenced to 3l years imprisonment and the 3.d appellant to 27 years imprisonment.

with leave of court granted under Section 132 (1) (b) of the Trial on Indictments Act, the appellants now appeal to this court against sentence. The sole ground of appeal was couched as follows:

# 15 The learned trtal &tdge efied ln law and fact uhen he imposed a harsh and excessfuie sentence against the appellant'

### Representetlon

At the hearing, John Isabirye learned counsel represented the appellants on state brief while Naluze Aisha Batala Assistant DPP from the Oflice of the Director of Public Prosecutions represented the respondent.

Due to the COVID- i9 Pandemic restrictions, the appellants were not in court physically but attended the proceedings via video link to Prison. Both parties sought, and were granted, leave to proceed by way of written submissions.

# 5 Appellant's wrltten submlsslons:

In his submissions, counsel for the appellants stated that the sentences imposed on the appellants were harsh and excessive. He faulted the learned trial judge for sentencing the 1\$ and 2rd appellants to 3 1 years imprisonment and 27 years imprisonment for the 3'd appellant.

- counsel for the appellants submitted that the iearned trial judge did not consider the fact that the appellants were hrst time offenders with no previous criminal record. That the 1"r appellant had a wife and 2 children, the 2"a appellant had 2 wives and 3 children while the 3.,1 appellant had a wife and a child and they were all sole bread winners for their families. 10 - It was his submission that those were mitigating factors which the learned trial judge ought to have considered and given lesser sentences. He cited R vs Havllland (19831 5 Cr. App. R(s) 1O9 to support his argument that an appropriate sentence is a matter for discretion of the sentencing judge and each case presents its own facts upon which a sentencing judge exercises his discretion 15 - He also referred to [IassaJa steven vs uganda crimlnal Appeal 19/1975 where court held that it was manifestly excessive to sentence a first time offender to 15 years imprisonment and reduced it to 10 years. 20

He further contended that the appellants were remorseful, young and capable of reform and all of them had family responsibilities. That the learned trial judge acknowledged the 3',lappellant's plea that he was a student and interested in going to school, an indication that he was capable of reforming and being productive to 5 society. He asked Court to take this into consideration. He cited Aharlkundlra yusltina vs uganda; crimlnal Appeat No.27 of 2O15 for the preposition that before a convict can be sentenced, the trial court is obliged to exercise discretion by considering meticulously all the mitigating factors and other pre-sentencing requirements. He prayed that the sentences be set aside by this honorable court and substituted with lenient sentences.

# Respondent's Submissions in reply

The Respondent opposed the appeal and supported the sentence imposed by the learned trial judge. He submitted that there was no reason for this court to interfere with the sentences and cited ulamutaniwe Jamlru Vs. uganda SCCA No.74 of 2OO7 for the preposition that the appellate Court is not to interfere with the sentence imposed by a trial court which has exercised its discretion, unless the exercise of that discretion is such that it results in the sentence being imposed to be manifestly excessive or so low as to amount to a miscarriage of justice or where the trial court ignores to consider an important matter or circumstance which ought to be considered while proving the sentence or where the sentence imposed is wrong in principle. 15 20

She submitted that the learned trial Judge in sentencing the 1"t and 2nd appellants to 31 years imprisonment and the 3.d appellant to 27 years imprisonment comprehensively considered both the mitigating and aggravating factors. That since the crime was committed by a gang and multiple injuries were inflicted on the head of the victim which is a vulnerable part of the body, the sentences were appropriate. That since murder carries a maximum sentence of death with the starting point of

Poge 4 of 9

- 5 35years, the sentence meted out to the appellant was not harsh. She cited section 189of the Penal code Act and the constitution (sentencing Guidelines for courts of Judicature)(Practice Directions 2O13), the 3rd schedule part one which provides for the starting point of murder to be 35 years as earlier stated above and the sentencing range is 30 years to death. - She further argued that the sentence of 27 years for the 3'a appellant was not harsh because court properly directed it's self on the 1aw and applied it to the facts. She prayed that this Honorable court upholds the sentence and dismisses the appeal. 10

### Analysis

we have read the submissions of both counsel and the authorities cited. we have also perused the record of appeal. As the lsr appellate court, it is our duty to reconsider all evidence that was adduced before the trial court and come to our own conclusions of fact and law while making allowance for the fact that we neither saw nor heard the witnesses. See Rule 30(11 (al of the Judicature (court of Appeal Rules) Directions, Baguma Fred Vs tlganda SCCA l\Io' 7 oJ 2OO4, K{umante Henry Vs llganda SCCA I\Io. 7O of 7997, o;nd D'R Pandga Vs R [1957] EA 336' 15

The complaint of the appetlants is that the trial court's sentence of 31 years imprisonment for the 1s and 2"d appellants and 27 years for the 3"1 appellant for the offence of murder u.as manifestly harsh and excessive. Counsel accordingly prayed that the same be set aside and substituted with more lenient sentences.

It is now settled that for the court of Appeal, as a first appellate court, to interfere with the sentence imposed by the trial court which exercised its discretion' it must 25

5 be shou'n that the sentence is illegal, or founded upon a wrong principle of the law; or where the trial court failed to take into account an important matter or circumstance; or made an error in principle; or imposed a sentence which is harsh and manifestly cxcessivc in the circumstances. h Kamga Johnson Wa uannuno Vs tlganda, SCCA JVo. I6 oJ 2OOO (tlnreported); Kiutalabge Bentard Vs Uganda, sccA lvo. 143 of 2OO1 (unreported); wamutabanewe Janniru vs uganda, sccA No. 74 o! 2OO7 and Ruabugande Moses Vs llganda, SCCA No' 25 of 2014' 10

While sentencing the appellants, the trial court stated thus

'Otim Moses A1, Muyomba Ali A2, and Lemokol Emmanuel A3 tuere conuicted of murder C/ S 188 and 189 of the penal Code Act' The offence carries a maximum sentence of death utith a sentencing range from 3O gears with a starting point of 35 years imprisonment.. . -"

In mitigation it uas submitted that the conuicts utere first offenders uith no preuious ciminal record. They are Aoung capable of reform' A1 has a uife and tuo children, A2 has two wiues and 3 children and A3 has a wife and achild. Their families respectiuely depended on and needed their care and support.

In allocuttts A3 started that by his arrest he utas in senior 5 at progressiue citizen High school. He praged for a lenient sentence uhich he can secure and go back to school.

Consideing all the aboue I fi.nd a sentence of 35 years appropriate' I deduct therefrom the n.earlg four Aears spent on remand. I accordingly sentence Al 25

5 OtimMosesandA2MuyomboAlieach3lgearsofimpisonment'HouLeuer, in addition taking into account A3 Lemokol Emmanuel's plea that he was a student and interested to go back to school, an indication that he is capable to reform ond be productiue to society, he is sentenced to 27 gears of imprisonment. The respectiue terms from the date of conuiction i'e 13th October 2014."

From the above, it is clear that the trial court took into account both the mitigating and aggravating factors before sentencing A1 and A2 to 31 years and A3 to 27 years. We find no reason to fault him.

This Court is alive to the principle of "parity'' and "consistency" while sentencing, bearing in mind that the circumstances under which the offences are committed are not necessarilv identical. See Sentencing Principle No'6(c) of the Constitution (Sentencing Guidelines for courts of Judicature) Practice Directions, 20 13- Legal Notice No.8 of 20 13 and Muhwezl Bayon vs uganda, court of Appeal criminal Appeal I{o. 198 of 2013, where this court after reviewing numerous decisiorrs of the Supreme Court and the Court of Appeal stated thus: 15 20

> "Although the circumstances of each case mag certainlg differ, this court has nout established. a range uithin uthich these sentences fall. The term of impisonment for murder of a singte person ranges betuteen 2O to 35 gears impisonment. In exceptional circumstances the sentence mag be higher or lower."

ln Mbuya Godfrey vs uganda, criminal Appeal No. 4 of 2o11 the Supreme court held that court should try as much as possible to have consistency in sentencing. 5

In the Mbunya supra the appellant had been convicted of murder of his wife. The supreme court set aside the death sentence and imposed a sentence of 25 years imprisonment.

In Adupa Dickens Vs Uganda, C. A. C. A. No, 267 of 2017, this court upheld the sentence of 35 llears imprisonment for murder and held that it was neither harsh, nor manifestly excessive to warrant the intervention of the Appellate court. 10

In Kyaterekera George wllltam V uganda, court of Appeal crlminal Appeal No. Ol13 of 2O1O, the appellant was convicted of murder by stabbing the deceased on the chest with a knife. This Court confirmed a sentence of 3O years imprisonment imposed by the trial Judge. 15

In Semanda christopher & another versua uganda cAcA No.77 OF 2O1O. the deceased was assaulted by the appellant and he later died in hospital. They were sentenced to 35 years imprisonment for murder and on appeal, this court upheld 20 the sentence.

Having regard to the circumstances of the instant case we are of the strong vierv that the Sentences of 3 I years imprisonment meted out against the l st and 2"d appellants and the sentence of 27 years imprisonment for the 3'd appellant were within the sentencing range of similar offences and squarely fell within the consistency and uniformity principte. The sentences were neither harsh nor excessive and we find no reason to fault the learned trial judge in deciding to sentence the appellants the way

5 he did. We uphold the trial court's sentences of the 1"t appellant Otim Moses and the 2,,d appellant Muyomba Ali of 31 years imprisonment each and the 3'd appellant Lemokoli Emmanuel of 27 years imprisonment..

This appeal is dismissed

We so order. r 10Delivered at Jinja this u day of 2022

Elizabeth Musoke JUSTICE OF APPEAL

borion Barishaki

JUSTICE OF APPEAL

Obura

JUSTICE OF APPEAL