Sebunya & Another v Uganda (Criminal Appeal 40 of 2018) [2024] UGSC 40 (21 March 2024)

## THE REPUBLIC OF UGANDA

# IN THE SUPREME COURT OF UGANDA

## AT KAMPALA

## [CORAM: OWINY-DOLLO, CJ, MWONDHA, TIBATEMWA-EKIRIKUBINZA, TUHAISE, CHIBITA; JJSC]

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## CRIMINAL APPEAL NO. 40 OF 2018

#### **BETWEEN**

## 1. SEBUNYA CHRISTOPHER 2. MUSINGUZI PEREZ

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#### 15

#### AND

## UGANDA :::::::::::::::::::::::::::::::::::

(An appeal from the judgment of the Court of Appeal (Kasule, Barishaki and Obura; JJA) dated 27<sup>th</sup> March, 2018 in Criminal Appeals Nos. 61 and 64 of $2013.$ )

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## JUDGMENT OF THE COURT

This is an appeal against sentence arising from the decision of the Court of Appeal which set aside a sentence of 28 years' imprisonment imposed on the appellants by the High Court in Criminal Session No.104 of 2011 for the offence of Aggravated Robbery c/s 285 and 286 of the Penal Code Act and substituted it with 25 years' imprisonment on grounds of illegality.

### **Background:**

The brief background is that, on 20<sup>th</sup> April, 2010 at about 10.00 p.m. in Seeta Town, Mukono District, the appellants using an iron bar, robbed from one Okurut Daniel, a boda boda rider, a motor cycle registration No. UDN 744C belonging to Kasujja Tom.

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- Subsequently, they were indicted, tried and convicted for the $\mathsf{S}$ offence of Aggravated Robbery c/s 285 and 286 of the Penal Code Act. Each of the appellants was sentenced to 28 years' imprisonment and ordered to pay compensation of shs. 2,000,000 (shared equally between them) to Kasujia Tom. - 10 Dissatisfied, they appealed to the Court of Appeal against sentence only on grounds of illegality and severity of sentence. The Court set aside the sentence and substituted it with 25 years' imprisonment reason being that the trial Judge did not deduct the remand period when he passed the sentence against each appellant. The appellants were still dissatisfied with the Court's 15 decision hence this appeal.

### **Grounds of Appeal:**

The grounds of appeal in the appellants' Memorandum of Appeal filed on $20^{\text{th}}$ September, 2021, are that:

1. The Learned Justices of Appeal erred in law when they 20 illegally re-sentenced the appellants other than referring the matter to the trial court for re-sentencing.

2. The Learned Justices of Appeal have no power to sentence or re-sentence an appellant who has no sentence of a trial court or whose sentence has been declared illegal and or unconstitutional.

3. The Learned Justices of Appeal erred in law when they failed to consider that the appellants sentence was harsh and manifestly excessive given the circumstance of the case.

The appellants prayed that the appeal is allowed. 30

### **Representation:**

At the hearing, Ms. Awelo Sarah who held brief for Mr. Andrew Sebugwawo represented the appellants on state brief while Ms. Ainebyona Happiness appeared for the Respondent. Both Counsel adopted the written submissions filed in Court.

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### **Submissions:**

### Appellants' submissions

Counsel argued all grounds together. Firstly, he faulted the learned Justices for not remitting back the file to the High Court for resentencing once they set aside the High Court sentence. $10$ Counsel submitted that where the Court of Appeal finds that a sentence of a trial court is illegal and or unconstitutional, such sentence is null and void and ceases to exist. In the absence of a sentence, the file ought to be sent back to the High Court for resentencing in order to give the convict a legal and constitutional 15 sentence.

Similarly, where the $1^{st}$ appellate court reverses an acquittal and convicts an appellant, the Court has no jurisdiction to pass sentence against the appellant either as of law or rule of practice. The file should therefore be remitted to the trial court for 20 resentencing. Counsel further submitted that an appellate court has no express powers to convict and sentence an appellant where the appeal arises from an acquittal but has powers to give orders and directions. He relied on Section 35 of the Criminal Procedure Code Act cap. 116 and Section 132 of the Trial on 25 **Indictments Act cap. 23** in support of his submission.

Counsel further argued that although **Sections 7 and 11 of the Judicature Act cap. 13** grant the appellate court powers to execute its functions with jurisdiction of the trial court, these powers should be used sparingly and cautiously. He argued that 30 instead of invoking its powers under the Judicature Act, in such instances it would be better to proceed under Rule 32 of the Judicature (Court of Appeal Rules) Directions S. I 13-10 and remit the case back to the High Court for resentencing.

The reasons advanced by Counsel for remitting the file back to 35 High Court for resentencing were to preserve the right of appeal of

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- the appellant against legality and severity or harshness of a $\mathsf{S}$ sentence and for the sake of consistency and uniformity in capital cases. Counsel relied on the case of Attorney General v. Susan Kigula & 417 others Constitutional Appeal no.03 of 2006, also followed in Yoda Atiku & Anor v Uganda SCCA No. 20 of 2009 - and Ambaa Jacob & Anor V Uganda, SCCA No. 10 of 2009 10 where the Supreme Court referred mandatory death penalty cases back to the High Court for resentencing.

Counsel further contended that sentencing was a trial process that required to call witnesses and tender evidence. This process and the resulting *allocutus* may not be adequately handled by the appellate court.

Secondly, Counsel faulted the learned Justices for not considering that the appellants' sentence was harsh and manifestly excessive given the circumstances of the case. Counsel contended that their

- Lordships only considered the remand period of 3 years which $\overline{20}$ they deducted, however no consideration was made as to the fact that the sentence was harsh and excessive. Counsel submitted that the sentence was harsh and should be reduced as has been in other cases. Counsel proposed a reduction from 25 years to 15 - years' imprisonment. Counsel relied on the cases of **Uganda v.** 25 Waiswa Henry & 3 Ors Criminal Session Case no.420 of 2010, Aliganyira Richard v. Uganda, Court of Appeal no.19 of 2005, Tumusiime Obed & Anor v. Uganda Court of Appeal no.149 of 2010 and Amanda Alex v. Uganda Court of Appeal Criminal Appeal no.0153 of 2014. to support this submission. 30

Counsel invited court to allow the appeal and set aside the Court of Appeal Judgment.

### **Respondent's Submissions**

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Counsel argued ground three alone and ground one and two together. 35

Regarding ground one and two counsel argued that this case 5 relates to an appeal where the appellants were convicted by the trial Court and has nothing to do with appeals against acquittals.

Counsel strongly argued that nothing in the law prohibits the Court of Appeal from passing a sentence where circumstances call for it. She argued that the law both statutory and case law 10 empowers the Court of Appeal to interfere and impose a sentence against an appellant in exercise of its original jurisdiction on appeal. Court can confirm, vary or reverse a sentence in as far as its jurisdiction permits. Counsel relied on **Section 132 of the** Trial on Indictment Act, Section 11 of the Judicature Act, $15$

Rule 32 of the Court of Appeals Rules, Kyalimpa Edward v Uganda, SCCA No. 10 of 1995 and Ambaa Jacob & Anor v Uganda, SCCA No. 10 of 2009.

Counsel therefore submitted that the learned Justices were not precluded from sentencing the appellants afresh upon finding that 20 the sentence appealed from was illegal. They were not required to remit the file back for resentencing.

Counsel submitted that if the Court of Appeal or even the Supreme Court were to remit every file to the High Court for sentencing afresh, there would be a great backlog created causing $\overline{25}$ unnecessary delays in hearing cases. There would be no end to litigation.

Lastly, counsel submitted that the cases cited by counsel for the appellants were distinguishable. In those cases, the appellants were never given an opportunity in the trial Court to submit in 30 mitigation of the mandatory death sentence. However, in the present case, the appellants made arguments in mitigation of sentence both at trial and on appeal.

In relation to ground three, counsel contended that the Justices having set aside the sentence, there was no longer in existence the 35 sentence that the appellants complained of as having been harsh and excessive as the learned Justices rightly found.

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Counsel invited Court to dismiss the appeal. $\mathsf{S}$

## Appellants' Submissions in rejoinder

Counsel for the appellants reiterated his earlier submissions and emphasised that this Court has a duty to guide all courts on matters of law even if a matter or issue does not arise directly out 10 of an appeal.

## **Consideration of the Appeal**

We have appraised the record, the written submissions and authorities of the parties.

This being an appeal against sentence only, as a second appellate 15 court, we are empowered to consider issues of legality of sentence only and not its severity as provided under Rule 5(3) of the Judicature Act

It is a trite principle of law that sentencing is a discretion of the trial court and that a sentence depends on the facts of each case. 20 It is also a settled principle that an appellate court can only interfere with the sentence if the sentence was illegal, court acted contrary to the law or on a wrong principle of law, ignored material factors, took into account irrelevant considerations or it was manifestly excessive to amount to an injustice. [See: Rwabugande $25$ Moses v Uganda No. 25 of 2014(SC) and Sekandi Hassan v Uganda No. 25 of $2019(SC)$

The main contention by the appellants is that the learned Justices failed to remit back the file to the High Court for resentencing when they set aside the High Court sentence since it was illegal 30 and therefore non-existent. Counsel contended that although Section 11 of the Judicature Act empowers the Court of Appeal to execute its functions with the jurisdiction of the trial court, it was better to remit the file back for resentencing in order to preserve

the right of appeal as provided under Rule 32(1) of the Court of $\mathsf{S}$ Appeal Rules.

We wish to note from the onset that remitting back the file to the High Court for resentencing was not an issue in the Court of Appeal. It cannot therefore be brought up at this stage since it was not raised and decided upon by the lower court. However, given that sentencing is a legality issue that requires this court's determination, we shall consider whether remission of this case to High Court for resentencing was necessary in the the circumstances.

In determining whether or not there is need for this Court to 15 interfere with the sentence before us, we wish to restate the finding of the Court of Appeal in its judgment at page 3-7 as follows:

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"In Rwabugande Moses -vs- Uganda, Criminal Appeal No." 27 of 2014, (unreported) the Supreme Court has held that Article 23(8) of the Constitution that requires a sentencing Court to take into account the period a convict has spent on remand, must be interpreted and applied to mean that the period spent on remand by a convict must be deducted from the number of years that the convict is sentenced to by that Court. It is the difference between the two that the convict must serve as a sentence.

In sentencing the appellants, the learned trial Judge held:

"Considering all the circumstances of this Case and the period the convicts spent on remand I sentence both convicts each to a term of 28 years' imprisonment".

The learned trial Judge ought to have deducted the remand period from the 28 years' imprisonment that he passed against each appellant. He did not do so and

this rendered the whole sentence illegal. Counsel for both appellant and respondent conceded to this. Accordingly, the sentence passed by the trial Judge is set aside Ground $2$ of the appeal is thus allowed.

Ground 2 of the appeal having been so resolved means that there is no longer in existence the sentence that the appellants complain of as having been harsh and excessive. Ground 1 of the Appeal is thus also allowed.

Section 11 of the Judicature Act vests in the Court of Appeal power to exercise the powers of the Court of original jurisdiction when entertaining an appeal. This Court will thus proceed to sentence the appellant as if it were the Court of original jurisdiction.

The evidence at trial which this Court has reviewed brings out the mitigating factors in respect of the first appellant (Musinguzi Perezi) as being a first offender, then his youthful age of 33 years at the time of conviction thus being capable of reforming into a better citizen. He is also remorseful. He has a wife and 2 children aged 6 and 4 years old to whom he is the sole supporter.

As to the second appellant, he too, in mitigation, is a first offender aged only 35 years at the time of conviction. He is thus able and has time to reform into a better member of society. He has a wife and 2 children aged 9 and 3 years to whom he is the sole supporter and provider. He has reformed while in prison as he is now a born again Christian. He was the sole supporter of his grandmother who had ran mad because of his $(2^{nd}$ appellant) having been arrested and kept in prison.

The aggravating factors against both appellants were that the crime of aggravated robbery amongst bodaboda riders, and other members of society, whereby victims

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are attacked, killed or seriously injured and then the motor-cycle, and/or other properties are stolen, had become very rampant in the country. A lot of violence had been used in the commission of the offence, by use of iron bars and other blunt objects to hit the victims. The victim in this case, Okurut Daniel, had been severely injured in the course of the commission of the crime, and had suffered from severe brain trauma and airway obstruction. He was still receiving medical treatment even by the time of the conviction of the appellants on 23.05.2013. The stolen motor-cycle had not been recovered by the date of conviction of the appellants.

Under the Constitution (Sentencing Guidelines for Courts of Judicature) (Practice) Directions, the above stated aggravating factors satisfied paragraphs 20 and/or 31 of those Guidelines. Those factors mitigating the sentence satisfied paragraphs 21 and/or 32 of the said Guidelines. Aggravated robbery being a capital offence, has death as the maximum sentence and in case of the appellant being sentenced to imprisonment, then 35 years is the starting point and 30 years' imprisonment up to death is the sentencing range, pursuant to paragraph 19, Third Schedule Part 1 of the above stated Guidelines.

Having considered the mitigating and aggravating 30 factors guided by the relevant provisions of the Sentencing Guidelines, we sentence each of the appellants to 28 years' imprisonment.

The appellants were remanded by Court on/or about 02.06.2010 so that by the time of their conviction on 23.05.2013, each one had spent about 3 years on remand. The said remand period of 3 years is deducted

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from the 28 years' imprisonment so that each appellant is to serve a term of 25 years' imprisonment as from the date of conviction and sentence of 23.05.2013.

The motor-cycle, the subject of the robbery, had not yet been recovered by the time of the appellants' conviction. By virtue of Section 286(4) of the Penal Code Act this Court orders that the appellants jointly and/or severally pay shs. 2,000,000/= compensation to the owner of the $\frac{1}{2}$ motor-cycle Kasujja Tom who testified as Pw1 in the trial proceedings before the High Court.

Accordingly, the consolidated appeals are allowed in 15 that the sentences and orders issued by the trial High Court are set aside. Each of the appellants is sentenced by this Court to 25 years' imprisonment as from the date of conviction of 23.05.2013. The appellants are also to pay compensation in the terms stated herein $20$ above to the stated victim of the crime. We so order."

The legal obligation of a first appellate court is to reappraise evidence. The parties are entitled to obtain from the court its own decisions. Therefore, except in the clearest of cases, this Court will interfere only where it is satisfied that a miscarriage of iustice has occurred.

This Court has further stated in the case of Kamya Johnson Wavamuno vs. Uganda Criminal Appeal No.16 of 2000(SC), that:

"It is well settled that the Court of Appeal will not 30 interfere with the exercise of discretion unless there has been a failure to exercise discretion, or failure to take into account a material consideration, or an error in principle was made. It is not sufficient that the members of the Court would have exercised their discretion differently."

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It is clear from the Judgment that the learned Justices $\mathsf{S}$ reappraised the evidence and imposed a different sentence from the trial Court. They did so in the exercise of the powers vested under section 11 of the Judicature Act, having found that the sentence was illegal because the remand period was not deducted as required under Article 23(8) the Constitution. 10

Section 11 of the Judicature Act provides as follows:

## "Court of Appeal to have powers of the court of original jurisdiction"

for the purpose of hearing and determining an appeal, the Court of Appeal shall have all the powers, authority and jurisdiction vested under any written law in the court from exercise of the original jurisdiction of which the appeal originally emanated."

In the case of Ambaa Jacob & Anor v Uganda, SCCA No. 10 of **2009,** this Court in construing the section held: 20

> "Obviously this section empowers the Court of Appeal in ordinary appeals to impose any order or sentence which a High Court could do. Our understanding of section 11 is that in cases where the Court of Appeal reverses a decision of court from which the appeal emanated, the Court of Appeal has the same powers, authority or jurisdiction as the Court of first instance to pass the sentence or make any order which the Court of first instance could have made."

As noted earlier, counsel for the appellants does not dispute the 30 fact that the Court of Appeal is vested with such powers of original jurisdiction as the High Court. However, he did not agree that such powers were appropriate in the circumstances.

We respectfully disagree. In our view, the circumstances of this case did not warrant remitting the file back to the trial court for 35 resentencing. There was no missing record. The submissions

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- together with the proceedings from the *allocutus* of the appellants $\mathsf{S}$ were on record as well as the trial Judge's sentencing ruling. All the evidence to consider regarding sentencing of the appellants was on court record which the learned Justices rightly reviewed and ascertained that the remand period was not deducted in 10 - passing sentence. They also reviewed the mitigating and aggravating factors as presented at the trial court and granted an appropriate sentence in accordance with the law.

Having found that the sentence appealed against was illegal on account of remand, section 11 of the Judicature Act in the circumstances empowered the learned Justices to reverse it and 15 impose a proper sentence which the trial court could have made hence their rightful interference with the trial Judge's discretion in sentencing the appellants.

It is not a requirement that in every case where a principle is not followed by the trial court such as proper deduction of the remand 20 period, it necessitates remission of the file back to the High Court on grounds of illegality. As stated above, an appellate court can interfere with the sentence, and the proper procedure is to reverse and set it aside and exercise its discretion to render an appropriate sentence where the law/statute permits, like section 11 of the $25$

Judicature Act in this case.

As earlier stated remission was not an issue at the Court of Appeal. For clarity the issues were:

"1. The sentence of 28 years' imprisonment was harsh in light of the mitigating circumstances. 30

2. The learned trial Judge erred in law when he considered but failed to deduct the 3 years spent on remand from the sentence he gave the appellants to serve."

The appellants specifically prayed that the learned Justices deduct the remand period and find that the sentence of 28 years 35 was harsh hence reduce the same to 15 years. It is obvious that

in deducting the remand period, the learned Justices had to set $\mathsf{S}$ aside the trial Judge's sentence and resentence the appellants in accordance with the law. In our view, having not remitted the file back to the High Court is not fatal to the sentence in this case. And it caused no injustice because what was done by the Court of Appeal is exactly what the High Court would have been obliged to 10 $do.$

Counsel for the appellants also relied on the case of Attorney General v. Susan Kigula & 417 others (Supra), and Ambaa Jacob & Anor V Uganda, (Supra) to support his submission on remission. In our view these cases are distinguishable from the present case.

It is trite that each case must be determined on its own merit and circumstances.

In **Susan Kigula**(supra), this Court found that the death sentence was not mandatory and declared the **mandatory** death sentence 20 under the Penal Code Act unconstitutional. It directed all pending matters on appeal, pending consideration of the death sentence which were affected by the **Kigula** decision of 21<sup>st</sup> January, 2009 and were lodged in the Court of Appeal and this Court between 25

2005 and 21<sup>st</sup> January, 2009, to be remitted back to the High Court for purposes of making submissions on mitigation of the death sentence.

Similarly, the Ambaa Jacob case(Supra), was affected by the **Kigula** decision and that is why this Court remitted it back to the

- High Court. The **Ambaa** judgment in the Court of Appeal was 30 delivered on 2<sup>nd</sup> April, 2009 when Kigula's decision was in existence. Subsequently, this Court found that for the sake of consistency, although section 11 of the Judicature Act empowered the Court of Appeal in ordinary appeals to impose a sentence - which the High Court could do, the Kigula decision was in 35 existence. That if it was not in existence then the Court of Appeal

could have entertained submissions on mitigation of the death $\mathsf{S}$ sentence.

In our view, the present appeal is not one of such appeals in the circumstances to order a remission merely on account of a principle error in law making the sentence illegal. The Court of Appeal in the instant case correctly addressed its mind to section 10 11 of the Judicature Act because there was a sentence being appealed against on grounds of an error in law unlike in the Kigula and Ambaa cases where the mandatory death sentence was no longer in existence following the declaration by this Court and direction to remit those affected matters to the High Court for submissions on mitigation of the death sentence.

Still, in the present case, the appellants made submissions in mitigation of sentence at the trial court and subsequently a sentence of 28 years was imposed by the trial Judge though without taking into account the period spent on remand as 20 required under the Constitution. The trial court therefore erred in law which necessitated the Court of Appeal's interference with the sentence. In reviewing the evidence, the learned Justices rightly imposed a proper and appropriate sentence, taking into account the remand period as required under Article 23(8) of the

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It is settled that taking into account the period spent on remand is necessarily arithmetical as was held in **Rwabugande** (supra). Therefore, **Rwabugande** simply rectified the position on remand that already existed in the Constitution. Prior, what was needed 30 was for court to demonstrate that the period spent on remand had been taken into account and not to give an omnibus decision as the trial Judge did in this case.

Furthermore, and for purposes of consistency, our decision in **Rwabugande**, which guided all courts in regards to deduction of 35 the remand period during sentencing, did not indicate or direct remission of such matters to the High Court on grounds of an

illegal sentence. Such sentences could be interfered with and $\mathsf{S}$ handled by an appellate court on appeal in accordance with the law. We are still bound by that decision.

For the foregoing reasons, we cannot fault the Court of Appeal and therefore find no reason to remit this case for resentencing in the High Court. We indeed agree with counsel for the respondent that

if every file were to be remitted for resentencing, this would cause unnecessary delays and there would not be an end to litigation.

We also note that counsel for the appellants submitted that a first appellate court had no jurisdiction to pass a sentence when it reverses an acquittal and convicts an appellant or where an appeal arises from an acquittal.

Our view is that this case was not an issue of an acquittal simply because the Court of Appeal set aside the sentence of the trial Judge on the basis of an illegal sentence. The Court of Appeal did not acquit the appellants. It only reversed the decision of the trial

court and imposed a proper sentence as permitted and guided by the law. Counsel for the appellants' submissions are therefore misconceived/ misplaced.

Ground one and two therefore fail.

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Relating to the issue of harshness on ground three, Counsel faults 25 the learned Justices for not having considered this issue at all but only considered the issue of remand. As earlier stated this Court is empowered to entertain only matters of legality and not severity of sentence. For this reason, this ground would fail since the appellants' appeal includes excessiveness of the 25 years' 30 custodial sentence.

However, for purposes of justice, case law has indicated that an appellate court will not normally interfere unless it is satisfied that the sentence imposed was manifestly excessive to amount to an

injustice. [See Kyalimpa Edward vs Uganda SCCA No. 10 of 35 1995 and Rwabugande vs Uganda (supra)].

A perusal of the evidence as discerned from the substance of the $\mathsf{S}$ Court of Appeal judgment shows that harshness of the sentence was considered. Ground 1 was in relation to harshness and court resolved that since the trial Judge's sentence was illegal there was no longer in existence the sentence that the appellants complained of as having been harsh and excessive. We agree with this finding. 10

Furthermore, in imposing the sentence of 25 years, the Court considered both the mitigating and aggravating factors as well as the sentencing guidelines having in mind that the offence of aggravated robbery attracted a maximum penalty of death and the starting point for imprisonment was 35 years with a sentencing range from 30 years up to death. In our view therefore, the sentence of 25 years was lenient.

Ground three also fails.

In conclusion, the learned Justices considered the principles applicable to the case correctly and re-evaluated the evidence 20 properly. We therefore find no reason to interfere with the sentence of 25 years. It was not illegal; neither did it warrant remission to the High Court for resentencing nor was it manifestly excessive to amount to an injustice. As a result, this appeal is accordingly dismissed. The sentence of the Court of Appeal and 25 the orders therein are upheld.

$21st$ .....day of March Dated at Kampala this.....

Alfonse C. Owiny-Dollo

**CHIEF JUSTICE**

I Umeradup

## Faith Mwondha JUSTICE OF THE SUPREME COURT

L'usalenne. Prof. Lillian Tibatemwa-Ekirikubinza JUSTICE OF THE SUPREME COURT


Percy Night Tuhaise JUSTICE OF THE SUPREME COURT

life De Data<br>ke J. Chibita

JUSTICE OF THE SUPREME COURT

Judgment des linende des dinches<br>ABabyo<br>21-03-2024.

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