Otim v Uganda (Criminal Appeal 6 of 2016) [2020] UGSC 54 (8 May 2020)

Full Case Text

## THE REPUBLIC OF UGANDA

# IN THE SUPREME COURT OF UGANDA AT KAMPALA

# ICORAM: ARACH-AMOKO, MWANGUSYA, OPIO-AWERI' MWONDHA AND NSHIMYE, JJSCI

# CRIMINAL APPEAL NO. 06 OF 20I6

## BETWEEN

OTIM MOSES..... ........... APPELLANT

## AND

# UGANDA RESPONDENT

(An appeat from lhe judgmenl of the Court ofAppeal (Kavuma, DCJ; Buleera and Cheborion; 1s JJA) tlated l4h April,20l6 in Criminot Appeal No.l45l of 2005,)

## . IUDGMENT OF THE COUII'T

20 'lhe appeltant was indicted together with Odur Moses and Emeny Patrick on two counts of murder c/s 188 and 189 olthe Penal Code Act and aggravated robbery c/s 285 and 286 (2) ol the Penal Code. '[he particulars of the offence were that they, on the l/10/2005 at Anyom-Orem village, at Adek-Okwok Parish in l,ira district, murdered one Felix Ongom and on the same date and place robbed Anna Angom ofa gasoline generator, a wall clock and shs. 1,500; and threatened to use a deadly weapon to wit, a gun, on Anna Ongom in the course of the robbery.

'l'he DPP dropped the charges against the other two but the appellant was tried and convicted as charged. He was sentenced to suffer death on the first count of murder. The sentence on the second count ofaggravated robbery was suspended.

- Although this point was not raised in this appeal, we must point out that this was an error on the part of the learned trial Judge. After convicting the appellant on both counts, the correct course would have been to sentence him on both counts before suspending the sentence on the second count. (See: Amos Binuge & Ors vs. Uganda, Criminal appeal No. 23 of 1989) where this Court stated as follows: - "We accept lhe position thal where an accused person is indicted and cottvicted on morc than one count eoch couttt shoultl normally carry a sentence or penalty. But we do not consider il proper, where the ofJbnces carry death sentences, for the lrial Court tu impose multiple death senlences. lle think that lhe correct course is for the ltiol iudge to pass the death sentences on oll lhe couttts bul then suspend them e-YcePt on one utunl only,'. This is the stutrd this Court took itr: Moses Kolt,rtwa q44 J olhers v Ugunda . Criminul unneul No.4 ttl 1985(unreoorled)." 10 15

The appellant appealed to the Court ofAppeal against the conviction and sentence but the appeal was dismissed. He has now appealed to this Court on the ground 20 that:

l,'I'hc lcarnctl Justiccs of Appeal errcd in law when they upheld and confirmcd the sentence of death which had bccn given by the trial Judge which sentence was illegal and manifestly excessive in the circumstances.

He prayed that the appeal be allowed, the sentence be set aside or substituted with 25 alesser sentence.

llcprescntalion

5 The appellant was represented by Nalunga Birimumaso on state brief. Principal State Attorney Rose Tumuhaise represented the respondent. They adopted the wrinen submissions that they had filed in Court prior to the hearing.

#### Submissions of Counscl

Counsel for the appellant in her submissions invited this court to find and to hold that while sentencing the appellant, the two Courts below failed to consider or even take into account the material factor of his age at the time of commission of the offence. Had they done so, they would have found that he was a juvenile and would have sentenced him according to Section 9a(l) (g) of the Chitdren Act. The failure to consider the age of the appellant made the Courts below to impose and uphold a death sentence which was illegal and an illegality cannot be condoned once brought to the attention ofcourt. 10 15

Counse I relied on the decision of this Court in the case of Birembo Sebastian and Niyonzima Masiko vs. Uganda, SCCA No. 20 of 2001, in support of her submissions.

- She prayed that since the appellant had spent 5 years on remand before sentence and since he has been incarcerated for a period of seven years now, this court should allow the appeal, set aside the sentence and release the appellant and set him free. 20 - l'he learned Principal State Attorney opposed the appeal. She contended that the issue of age was not raised at all in the stages of proceedings. It is being raised for the first time before the Supreme Court. Therefore, the High Court and the Courl ofAppeat cannot be faulted for not taking into consideration the appellant's age in reaching their decision. 25

5 Secondly, Counsel contended that, even if the issue of age had been raised before the two Courts, it would not have been supported by the evidence on record and the Courts would have found that he was not below I 8 years at the time he committed the offence. Counsel based her submissions on; (a) the indictment (b) the evidence of Anna Angom (PWl) and (c) the appellant's defence and the statement by his lawyers during allocutus. Counsel for the respondent prayed that the appeal be dismissed since it lacks merit. 10

#### Considcration of the Appcal by Court

We have carefully perused the submissions, read the authorities cited as well as the record of appeal.

- We note that the appeal is against sentence only. Therefore, the well settled principles upon which an appellate Court can interfere with a sentence enunciated in the cases cited by the learned Counsel for the appellant apply. In the case of Kyalimpa Edward vs. Uganda' SCCA No.l0 of 1995' for instance, this Court held that: 15 - "an appropriate senlence is a matler for lhe discrelion of lhe senlencing judge, Each case presents its own facls upon which a iudge exercises his discrelion, lt is the practice tlrol as an oppellale court, lhis court will not normally inlerfere witl, lhe discretion of the sentencing iudge unless lhe sentence is illegol or unless court is salisJied thot the senlence imposed by the trial judge was manifesill, so excessive as to omount lo an injustice." 20

ln another Supremc Court decision, in the case of Kamya Jonhson Wavamuno vs. Uganda, SCCA No.l6 of 2000, the Court stated that:

"It is well seilled that the court of appetl will not inlerfere with the exercise of discrelion unless lhere has been a failure to exercise discrelion or failure lo toke into occounl a materiol consideration or an error in principle was made. It is not sufficient lhat lhe members of the court would hove exercised their discretion clifferently."

#### 10 In Kiwalabye vs. Uganda, SCCA No.l43 of 2001, this Court held that:

"The appellate Court is nol to interfere with senlence imposed by a trial courl which hos exercised its discretion on senlences unless the e-rercise of the discrelion is such tlrst the lrial court ignores to consider an importont motter or circumslonces which oughl to be considered when pussing the sentence."

Apptying the above stated principles to the facts of this case yields the following resu lts:

Basicatly the appellant's contention is that the sentence is itlegal and excessive because according to the record, the appellant was only l7 years old and therefore zo a juvenile by the time he committed the offence. Therefore, the sentence imposed on the appellant contravened section 94(l) (g) ofthe Children Act which provides that:

"(g) detention for a murimum of three months for a child under sixleen yeau of age and a murimum of twelve months for u chiltl above skleen 25 years ofage and in the case ot'an offence punishable by dealh, three years in respect of any child."

The fact that the issue of age was not raised in the lower Courts is not in contention. The law regarding sentencing ofjuveniles is also clearly set out by the Children Act, (Cap 59) which defines a child in Section 2 as a person below l8

- 5 years. Therefore, had the lssue of age arisen and been proved before the lower Courts and had the appellant been sentenced to death under the Penal Code Act, (Cap 120) then clearly, such a sentence would have been illegal and this Coutt would be at liberty to interfere with the sentence in accordance with the authorities of Kyalimpa vs. Uganda and Kiwalabyc vs. Uganda referred to above. - Our view is therefore that the issue ol age is a point of law and this Court cannot ignore it once it is brought to its attention. 'l'his was the case in Birembo Sebastian and Niyonzima Masiko vs. Uganda (supra). In that case this is what the Supreme Court held: 10

"Thelirst appellant hos not appealed against sentence, but we think lhal il would be an injustice to him if we did not consider the question of his age in view of the unsotisfactory evidence on record regarding proof of age... Llnder Section 104 of the Trial on Indictment Decree 1971, a senlence of death csnnot be imposed ogsinst o person convicled of an offence, if it appears to lhe court thot at lhe lime when the offence was committed, he was under the oge of 18 years."

Section 104 of the Trial on Indictment Decree is now section 105 of the Trial on Indictment Act (Cap 23).

In that case, the appellant had stated in his unswom statement that he was l8 years at the time of the trial. The doctor examined him and estimated his age to be at least l0 years. The courl allowed the appeal and ordered that the case be remitted to the Family and Children Cou( to inrpose the appropriate sentence' In the meantime, the appellant was to be detained in an appropriate place.

5 ln the instant case, the evidence is not clear at all. The indictment referred to by Counsel for the respondent does not state the appellant's age anywhere. Anna Angom (PWl) did not also mention the appellant's age in her testimony although she stated that she knew him very well. She only described him as "the short one".

'l'he appellant relies on his sworn testimony where he stated that he was 2l years otd. This was on the 7'r'October,2009. The offence was committed on the I't October, 2005 which would imply that the appellant was l7 years old at that time.

This evidence was however contradicted by his own Counsel, Mr. Twonto who stated during allocutus lhat'. "He is still young oged 25 years." The appellant did not dispute this fact. We think that Counsel must have submitted according to the instructions of the appellant. This was on the 30'h April, 2010. This means the appellant was 20 years old when he committed the offence and therefore above the age of l8 years.

In light of what Counsel for the appellant stated in the allocutus, we are disinclined to interfere with the sentence imposed by the High Court and confirmed by the Court of Appeal. We find no merit in this appeal and accordingly dismiss it.

Dated this..... t# day ol 201 8

HON. JUSTICE STELLA AITACH. AMOKO. JUSTICE OF THE SUPREME COURT

HON. JUSTICE ELDAD MWANGUSYA JUSTICE OF THE SUPREME COURT

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### **HON. JUSTICE OPIO-AWERI**

#### JUSTICE OF THE SUPREME COURT

Almen alle

## **HON. JUSTICE FAITH MWONDHA**

# JUSTICE OF THE SUPREME COURT

HON. JUSTICE AUGUSTINE NSHIMYE

JUSTICE OF THE SUPREME COURT 25

#### THE REPUBLIC OF UGANDA

# IN THE SUPREME COURT OF UGANDA AT KAMPALA

## CRIMINAL APPEAL NO. 62 OF 2018

(Coram: Kisaakye; Arach-Amoko; Mwangusya; Opio-Aweri; Buteera; JJ. SC)

#### BETWEEN

1. KYABIRE PATRICK

2. ABDU MPIIRA

**.....................................**

3. MAGANDA DAVID

4. KABUZE MOSES

#### AND

UGANDA:::::::::::::::::::::::::::::::::::

(Appeal from the decision of the Court of Appeal of Uganda sitting at Jinja (Remmy Kasule, Barishaki Cheborion and Hellen Obura) dated 27th March 2018 in Court of Appeal Criminal Appeal No. 0749 of 2014).

#### JUDGMENT OF THE COURT

This is a second appeal from the judgment of the Court of Appeal which upheld the death sentence imposed on the appellants by the High Court on four counts of murder.

The facts of the case as found by the courts below are that in the 25 morning of the 19th October, 2000, the body of Paul Kigoli was

- found by the roadside very near the home of one Eseza Namusobya, a local potent gin seller. The previous evening, late Paul Kigoli had been drinking in the company of Mawulira Fred, - Mubezi Moses and Swaga David. When the death of Paul Kagoli 30

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was reported to the local authorities, they arrested Eseza Namusobya together with Mawulira Fred, Mubezi Moses and Swaga David as suspects and for their safety, locked them up in the cells at Gadumire Local Administration Police Post.

10 15 Soon thereafter, the appellants and others who were still at large at the time of their trial raided the said Police Post, overpowered the oflicers on duty and forcefully removed the four suspects from the cells. They then took Eseza Namusobya to her hut, locked her inside, set it ablaze from outside and burnt her to ashes. After that, they hacked each of the other three suspects to death and burnt their bodies as well.

The appellants were arrested as a result of the incident and were each charged with four counts of the offence of murder. They denied the offence and raised the defence of alibi at their trial. The trial judge, Bamwine J, as he then was, convicted them on all the four counts and sentenced each of them to the mandatory death sentence on the 24.06.2OO2.

As a result of the decision of this Court in Susan Kigula & 417 Othere v Attorney General, Constitutional Appeal No. 3 of 2006 (SC), the appellants'case was remitted to the High Court for hearing in mitigation of sentence. Wangutusi J who conducted the mitigation maintained the decision of the trial Judge.

The appellants' appeal to the Court of Appeal that the sentence was harsh and excessive was also dismissed by that Court. They appealed to this Court on only one ground that: 5 The learued Justices of Appeal erred in law in confirmlng the death seutences notwithetanding the compelling mitigatiag factors available to the Appellants.

### Representation

Mr Henry Kunya continued to represent the appellants on State brief. The respondent was represented by Assistant Director of Public Prosecution, Michael Ojok. They relied on the submissions filed in court and gave brief highlights during the hearing of the appeal. 10

#### Submlssions

Counsel for the appellants opened his submission by referring to the celebrated case of Kiwalabye v Uganda, Crlminal Appeal No 143 of 2OOf (CAl which has settled the principle of law that an appellate Court is not to interfere with the sentence imposed by the trial court which has exercised its discretion on sentence, unless the court, in exercise of its discretion ignored to consider an important matter or circumstances which ought to be considered when passing sentence. t5 20

He submitted that in upholding the death sentences imposed on the appellants, the Court of Appeal failed to re-evaluate the entire evidence on record and most importantly, the compelling mitigating factors put forward by the appellants. It therefore erred.

According to counsel, the Court of Appeal did not consider the fact that it was a case of mob justice where several residents had invaded the police facility, overpowered the officers on duty, removed the deceased persons from custody and killed them one

s by one. several people were arrested and according to the charge Sheet, 37 of them were charged with murder of the deceased persons. In cases such as the instant one, counsel argued, there is a possible margin of error that ought to be borne in mind while sentencing those found culpable to ensure that the appellants do ro not become sacrificial lambs for the actions of an unruly, aggressive and highly charged crowd. He submitted that it is now settled that in terms of sheer criminality, a mob cannot and should not be put on the same plane in sentencing as those who plan their crimes and execute them in cold blood.(See: Kamya Abdulla & 4

rs Others v Uganda ( Supreme Court Crlminal Appeal No' 24 of 201s).

Secondly, counsel submitted that the Court of Appeal did not consider that the appellants were first time offenders who ordinarily should not be sentenced to suffer the maximum 20 sentence that is death, notwithstanding the calamitous nature of the said offence. This is because it is now settled law that the fact that one is a first time offender should be taken into account before passing the ultimate sentence (See: Susan Kigula (supral'

Thirdly, counsel submitted that the Court of Appeal did not also 2s consider the mitigating factor that the appellants were of youthful age at the time of conviction since they were 35,29, 32, and 25 years old respectively, hence were capable of reforming and being re-integrated in the society after serving their prison sentences.

counsel also submitted that it is also settled law that the death 30 sentence should be passed in very grave and rare circumstances

5 because of its finality. (See: Mbunya Godfrey v Uganda, Suprene Court Criminal Appeal t{o. O4 of 2O1l).

Counsel further submitted that it is also settled law that no two crimes are identical. However, courts should try as much as possible to have consistency. (See: Mbunya Godfrey v Uganda (supra)).

Lastly, the learned counsel submitted that on account of the principle of stare declsis- the doctrine of precedent, a court must follow earlier judicial decisions when the same points arise in litigation.

Consequently, Counsel invited Court to find that the Court of Appeal erred in law in confirming the death sentences on the appellants without considering the compelling mitigating factors above. He prayed that the appeal be allowed, the sentences be set aside and replaced w'ith custodial sentences in the range of 20 to 25 years. 15 20

The reply by the respondent's counsel was brief. He supported the decision of the Court of Appeal and contended that they had not erred at all since they had considered all the relevant factors before arriving at their decision that the death sentence be upheld.

Regarding the case of Kamya Abdulla (supra), counsel submitted that it was distinguishable. He submitted further that this Court had emphasised in the case of Turyahabwe & 12 Others v Uganda, Supreme Court Criminal Appeal No. 50 of 2015' that the manner in which the appellant had committed such a heinous crime would render the fact that they were first time offenders of little relevance. 30

5 He therefore prayed that the appeal be dismissed and the sentences be upheld by this Court.

## Conelderation ofthe appeal by Court

We have carefully read the record of proceedings, the submissions by both counsel and the authorities cited.

- The complaint before this Court by the appellants is that the Court of Appeal erred in conf,irming the death sentences imposed on them by the High Court despite compelling mitigating factors that were available before them. In his submissions, learned Counsel for the appellants enumerated them as mob justice, hrst time offenders, youthful age, the gravity of the offence, and consistency with sentences in previous similar cases. Based on the authority of Klwalabye v Uganda, Crimlnal Appeal No 143 of 2O01 (CA)' counsel prayed that this Court should therefore interfere with the sentences and replace them with custodial sentences. 10 15 - The respondent's counsel supported the decision of the Court of Appeal. The issue before this court is therefore: 20 - a) Whether the Court of Appeal ignored the above mentioned factors in confirming the death sentences of the appellants as alleged. - 25

b) If so, whether this Court should re-consider them and therefore interfere with the appellant' sentences.

We must state from the outset that this is a second appeal and the duty of the 2"d appellate Court is to determine whether the first appellate court properly re-evaluated the evidence before coming to its conclusion. The second appellate court should not interfere

s with the decision of the trial court except in the clearest of cases where the first appellate court has not satisfactorily re-evaluated the evidence. (See: Kifamunte Heury v Uganda, Supreme Court Criminal Appeal No.10 of f997.f

We must also re-state the settled principle that this Court as an appellate court will only interfere with the sentence imposed by the trial court if it is evident that the court acted on a wrong principle or overlooked some material factor, or if the sentence is too low or manifestly excessive in the circumstances of the case. (See: Livlngstone Kakooza v Uganda, Supreme Court Criminal Appeal No.17 of 1993.) 10 15

According to the record of proceedings, during mitigation, counsel for the state submitted that the appellants had committed a heinous crime where they had killed the deceased persons in a ghastly manner. That the appellants became judges and executioners in this matter. They violently removed the deceased persons from the police cells, proceeded to torture them with sticks and stones and then burnt them to vestiges. That the appellants were properly identified as the culprits who had participated in this heinous crime with the common intention of killing the deceased persons. That the deceased were tortured and killed under the watchful eyes of the community since it was broad daylight. This was very traumatising on the community especially for one of their mothers who fainted when she saw the appellants actually burning her son to death. Counsel prayed that the death sentence should be maintained since the appellants had taken the law into their own hands. 20 25 30

The record indicates that the appellants' counsel had pleaded for a lenient sentence. In mitigation, Counsel had put forward the following factors:

- 1. The appellants had been on death row for 12 years and had suffered the death row syndrome; - 2. The appellants had been on remand for one and a half years; 10 - 3. The appellants had no record of previous conviction; - 4. Mawulire was of advanced age of 72 years with failing health; - 5. Kyabuza was of the youthful age of 26 years and could have been influenced by the group in participating in the crime without knowing the consequences; - 6. All the appellants had family responsibilities and their families had disintegrated since their incarceration; - 7. The appellants had undertaken religious courses and had acquired skills in making handcrafts while in custody; - 8. This was mob justice where they are not sure of the roles 20 played by each of the appellants.

The record further indicates that in sentencing the appellants, the learned mitigation judge took into account the aggravating and mitigating factors listed above and concluded that:

"...counsel for the appellants had really brought out 25 mitigating factors which, if there were no aggravating circumstances, would justify a custodial sentence."

The learned mitigation judge then concluded that:

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"The aggravating factors I have listed above surpassed whatever mitigating factors that have been submitted to such the extent that even the death row syndrome put forward by counsel for the appellants could not pull this case out of the rarest of the rare cases."

Consequently, the learned judge maintained the death sentence on 10 each of them.

The appellants' appeal to the Court of Appeal was based on the ground that:

## "The sentence of death after mitigation was harsh and excessive in the circumstances."

As indicated earlier in this judgment, the same arguments were repeated before the Court of Appeal by counsel for the appellants and the respondent.

We find that the Court of Appeal, in determining the appeal, was alive to the settled principle stated in Livingstone Kakooza v 20 **Uganda (supra).** The Court then went on to determine whether or not the appellants' case falls in the category of the rarest of the rare cases as held by the mitigating judge. In their judgment, the Court of Appeal sets out in elaborate details the facts of that case, the evidence adduced by both parties especially regarding the 25 mitigating and aggravating factors. The Court of Appeal then proceeded to carefully evaluate the evidence. For emphasis, this is what the Court of Appeal held:

> "This Court, as a first appellate Court, has reviewed all the facts of this case, particularly with regard to the

> > 9

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mitigating and aggravating factors. We have carried out an objective assessment of the facts and we too are satisfied that the manner of commission, the motive, the magnitude of the crime as well as its anti-social and abhorrent nature coupled with the personalities of the victims of the crime , places this case in the category of the rarest of the rare cases."

We agree with the finding of the Court of Appeal. The case of Kamya Abdalla v Uganda (supra) relied on by the appellants' counsel is distinguishable. In this case, the learned trial judge relied on the evidence of six eye witnesses, namely PW2, PW3, PW4, PW5, PW6, PW7 and found that the appellants were properly identified as having participated in the killings with a common intention in that:

"It was evidence of people who saw it all. The accused persons were known to the witnesses prior to the time of the offence. The killings were carried out in broad daylight, around 10 am. The witnesses were in very close proximity with the assailants and accused persons were under observation for over an hour."

This evidence was not challenged before the mitigating judge or the 25 Court of Appeal. It therefore rules out the question of margin of error alluded to by this Court in Abdalla Kamya's case (supra). Regarding the issue of consistency, learned counsel for the appellants has rightly submitted that no crimes are identical. Courts must determine each case on the basis of its peculiar facts. 30 We are also alive to the requirement that courts should try as

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5 much as possible to have some consistency in sentences in the interest of justice. However, we are in total agreement with the court of Appeal that the gravity of the offence in the instant appeal justifies the imposition of the maximum sentence on the appellants.

For the foregoing reasons, we do not consider this an appropriate case where this Court should interfere with the sentence by the Court of Appeal. We accordingly dismiss the appeal and uphold the death sentence on each of the appellants. 10

15 Dated at Kampala this... day of ... 2020

Hon. Justice Dr. KisaakYe JUSTICE OF THE SUPREME COURT

Hon. Justice Arach-Amoko

25 JUSTICE OF THE SUPREME COURT

Hon. Justice Mwangusya

JUSTICE OF THE SUPREME COURT 30

Hon. Justice Opio-Aweri

# JUSTICE OF THE SUPREME COURT

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Hon. Justice Buteera

### JUSTICE OF THE SUPREME COURT