Owiny v Uganda (Criminal Appeal 527 of 2015) [2025] UGCA 10 (24 January 2025)

### THE REPUBLIC OF UGANDA

# IN THE COURT OF APPEAL OF UGANDA HOLDEN AT GULU

fCoram: Egonda-Ntende, Tibulya, Kazibwe Kawumi, JJAI

### CRIMINAL APPEAL NO. 527 OF 2OI5

(Arisingfrom High Court Criminal session case No. 6l of 2014 at Gulu)

### BETWEEN

Owiny Ambrose akaAyomo Jimm :APPELLANT

#### AND

UGANDA

RESPONDENT

(An appeal from a Judgment.of th.e High Court of {-lganda (Keitirima, J.), delivered on the 25th August 2014)

### JUDGMENT oF THE COURT

### Introduction

tl] This.is an appeal against sentence only with leave of this court. The appellant was convicted, on his o\*, pl"u of guilty, by the High Corrt of the offence ofmurder, contrary to sections tss and 1g9 ofthe penal code Act, cap' r28. The particulars of tie offence were that the appellant on the 2'd July 2013, atlabwor Okema village in egago District, unlawfully murdered Acan Sharon. He was senteiced to 2i(twenty\_iu.; y"u.i;, imprisonment. Dissatisfied with that sentence he lodged this appear on <sup>2</sup> grounds, which we set out below;

. l. The leamed trial judge erred in both law and lact when he failed to take into account the period spent on remand before imposing the sentence of 25 years,' imprisonment.

2. The leamed trial judge erred in both law and fact by imposing a sentence of 25 years, imprisonment on the appellant which sentence was harsh and excessive in the circumstances of the case.,

I2l The brieffacts ofthis appeal are that the appellant and Acan Sharon (the deceased) were riving as husband and wife at the ti-" the deceased met her death. On the 2nd day of July, 2013 ataround-1 l:00 pM, a quarrel arose between the appe,ant and the deceased over tathing water. A fight broke out between the two and in the course of the fight ttie the deceased to death. Out ofpanic, "pp.lh;;-;;;; the appelilmt carried the deceased,s

body and dumped it into the nearby river. He proceeded to place a big stone over the body so that it could not float and be seen.

- [3] Prior to dumping the deceased's body, as the appellant was placing the deceased's body in the sack so as to go and dump it in the river, he was seen by a nearby neighbour, Akidi Christine. Christine informed the other neighbours who referred the matter to Police. The appellant was traced by Police and found hiding in the bush. He admitted that he had killed his wife and he led Police to Acuku River where he had hidden the body of the deceased deep under the water. - The deceased's body was retrieved and taken to Patongo Health Centre III $[4]$ for postmortem. The cause of death was found to be strangulation leading to Asphyxia. In his charge and caution statement, the appellant admitted to killing the deceased. Upon medical examination, the appellant was found to be mentally sound but with a human bite wound on his left wrist.

## **Representation and Submissions of Counsel**

- At the hearing, the appellant was represented by Mr. Layoo Paul Julius $\begin{bmatrix}5\end{bmatrix}$ while Ms. Acio Marion, Chief State Attorney, held brief for Ms. Nalwanga Sharifa, Chief State Attorney in the Office of the Director, Public Prosecutions, on behalf of the respondent. - Learned counsel for the appellant submitted that the learned trial judge did $[6]$ not consider the period spent on remand when sentencing the appellant. She contended that this omission rendered the sentence of 25 years' imprisonment illegal for non-compliance with Article 23 (8) of the Constitution of the Republic of Uganda. - He further submitted that the trial Judge did not give due consideration to $[7]$ the mitigating factors pertaining to the appellant being a first-time offender who had pleaded guilty to the offence thereby not wasting Court's time. She stated that the appellant was remorseful and was a young man at the time he committed the offence, hence capable of reforming. She refereed us to Emeju Juventine v Uganda Criminal Appeal No. 95 of 2014 (unreported) in which this court reduced a sentence of 23 years imprisonment to 18 years for the offence of murder where the appellant had pleaded guilty. It was her contention that the trial Court in exercise of its judicial discretion did not take account of both the mitigating and aggravating factors to determine the appropriate sentence for the appellant.

- [8] Counsel for the respondent supported the sentence in the court below. She contended that the learned trial Judge took into account the period spent on remand and that the sentence of 25 years' imprisonment was rightly passed in both law and fact. - She submitted that the trial court was not bound by the of <u>Rwabugande</u> $[9]$ Moses v Uganda, [2017] UGSC 8 decision, requiring mathematical deduction of pre-trial remand period from sentence, since the sentence in the instant case was rendered before the Rwabugande decision. The learned judge acted in accordance with the controlling authorities at the time, including, Kizito Senkula v Uganda [2002] UGSC 36; Kabuye Senvewo v Uganda [2005] UGSC 23; Katende Ahmed v Uganda [2007] UGSC 11 and Bukenya Joseph v Uganda [2013] UGSC 3. - [10] Regarding ground 2 of the appeal counsel argued that the sentence of 25 years' imprisonment was not harsh and excessive considering the circumstances of this case. She referred to both decisions of the Supreme Court and this court where similar sentences had been upheld on guilty plea convictions. This included Batesa Malijan v Uganda [2019] UGSC 17; Nalule Sarah v Uganda [2021] UGCA 173; Muhangi Moses v Uganda [2023] UGCA 49 and Mwerinde v Uganda [2020] UGCA 117. - [11] She finally submitted that sentencing was in the discretion of the sentencing judge which should not be interfered with. In support thereof she referred to Aharikunda v Uganda [2018] UGSC 49; Kobusheshe Karaveri v Uganda [2014] UGCA 5 and Karisa Moses v Uganda [2019] $\overline{UGSC}$ 21.

### **Analysis**

[12] The Supreme Court and the predecessor Court of Appeal for East Africa have set down the principles to be applied by a first appellate court in dealing with appeals against sentence. The said principles are re stated in Livingstone Kakooza v Uganda [1994] UGSC 17 in the following words;

'An appellate court will only alter a sentence imposed by the trial court if it is evident it acted on a wrong principle or overlooked some material factor, or if the sentence is manifestly excessive in view of the circumstances of the case. Sentences imposed in previous cases of similar nature, while not being precedents, do afford material for consideration: See Ogalo S/O Owoura v R (1954) 21 $E. A. C. A. 270.$

[13] The foregoing principles are applicable in the instant case.

[14] We shall start by bringing in view the sentencing reasons and order of the learned trial Judge. It is very brief.

> 'I have heard both the mitigating and aggravating factors. Much as the convict pleaded guilty, his actions were gruesome against the person he was meant to protect. He equally wanted to dispose of her in a very gruesome manner. This action calls for a deterrence. I have considered the period the convict has spent on remand and I will now sentence him to 25 (Twenty-Five) years in Prison.'

- [15] Neither counsel for the prosecution nor counsel for the defence mentioned in their remarks to the court before the sentence the period the appellant had spent in pre-trial custody. The learned judge only stated that he had taken into account the period spent on remand and then sentenced the appellant to 25 years' imprisonment. It is clear that he had not ascertained the period the appellant had spent in pre-trial custody. It is thus unclear how he could have taken into account a period he had not ascertained. - [16] We agree with counsel for the respondent that at the time the decision on sentence was made by the trial judge Rwabugande v Uganda (supra) decision had not been made and the rule thereby created was not in effect. The learned judge did not have apply the arithmetical method and deduct the period spent on remand from the appropriate sentence. - [17] However, to comply with the provisions of article 23 (8) of the Constitution which requires the pre-trial period spent in detention to be taken into account in passing sentence, even prior to the Rwabungande rule, it was incumbent on the trial court to first ascertain the period, before taking it into account. If the period was unascertained, it would be difficult to understand what exactly the trial judge took into account. This failure to ascertain the period spent on pre-trial custody can only be resolved in the appellant's favour to the effect that the learned trial judge did not take into account the period spent in pre-trial custody. We find that the trial judge failed to comply with the article 23 (8) of the Constitution rendering the sentence unconstitutional. We hereby set it aside. - [18] We should add that since this appeal had not been resolved by the time of the Rwabugande decision it would follow that the Rwabugande rule is now applicable to the same as we resolve the appeal. See Namwendi Mutwalibi v Uganda [2024] UGCA 82 & Attorney General v Susan Kigula and 417 Others [2009] UGSC 6.

- [19] The learned judge in his sentencing notes stated that he had heard the mitigating and aggravating factors. He does not state whether after hearing the same he considered the same in determining the sentence. He only mentions the guilty plea, the gruesome nature of the murder, and that the appellant murdered a person he was supposed to protect. He does not consider that the appellant was a first offender who was only 24 years of age at the time of commission of the offence. - [20] Pursuant to the powers of this court under section 11 of the Judicature Act, we shall now proceed to sentence the appellant afresh. - [21] The appellant was a young man of 24 years old when he committed this offence. He is capable of reform and being reintegrated in society. He is a first offender with no previous record. He pleaded guilty saving the court's time and resources. By so doing it is also clear that he was remorseful for the offence he committed. However, he committed a very serious offence whose maximum punishment is the death penalty.

#### Decision

[22] We are satisfied that in the circumstances of this case the appropriate sentence would be 18 years' imprisonment from which we deduct the period spent on remand which is 1 year and 3 weeks. We order the appellant to serve a term of imprisonment of 16 years, 11 months and 7 days from the 25th August 2014, the date of conviction.

Sano

Signed, dated and delivered this $24$ day of

edrick Egonda-Ntende **Justice of Appeal**

> Margaret Tibulya **Justice of Appeal**

Moses Kazibwe Kawumi **Justice of Appeal**