Simbwa v Uganda (Criminal Appeal No. 145 of 2011) [2022] UGCA 50 (24 February 2022)

Full Case Text

# THE REPUBLIC OF UGANDA IN THE COURT OF APPEAL OF UGANDA AT KAMPALA CRIMINAL APPEAL NO. 0145 OF 2011

SAMBWA ISS APPELLANT VERSUS UGANDA RESPONDENT

(Aising from the tlecisiotr of the High Court by Faith Mzttorulln, I in High Court Cinrinal case No.728 of 2009, ilated the 7h d.ly ol lune 2017)

CORAM: HON. IUSTICE RICHARD BUTEERA, DCI HON. JUSTICE ELIZABETH MUSOKE, IA HON. JUSTICE CHEBORION BARISHAKI, JA

## IUDGMENT OF THE COURT

#### Introduction

The appellant Sambwa Issa was indicted with the offence of Murder contrary to sections 188 and 189 0f the Penal Code Act. He was convicted and sentenced

25 to 25 years imprisonment by Faith Mwondha, J, as she then was'

#### Background

It was alleged that on the 18rh day of May 2006 at Kiryamuli village in Mitiyana District, the appellant murdered Ssekatawa Muhamudu.

30 The case for the prosecution was that the appellant and the deceased had a misunderstanding over land in Kiryamuli Bulera sub<ounty, Mityana District. The appellant was a steP brother to the deceased.

Upon the death of the deceased's father, the deceased who was residing in Kampala returned to Mitiyana District as the heir to his father and settled

- together with his wife Nabukeera Aisha on his late father's land. The appellant was not happy with the deceased's settlement on the late father's land which caused a grudge between the two brothers. The matter was taken to the Chairman Local Council I, Muwonge Joseph, to resolve the misunderstanding between the appellant and the deceased. The matter was resolved, however, the appellant was not satisfied and he was said to have made several attemPts to 10 5 - take the deceased's life.

on the fateful day, the deceased went to the shop to buy milk, sugar and bread. On his way back home at around 9pm, the deceased was attacked. The deceased was found lying in a pool of blood, he was still alive but he could not talk. He

was taken to the hospital, where he died upon arrival. His body was examined and found with multiple deep cuts on the head and neck, which caused severe bleeding that led to his death. 15

The appellant was arrested, tried and convicted for the offence of Murder. He was sentenced to 25 years imprisonment.

20 Being aggrieved by the decision of the trial Court, the appellant with leave of Court appealed against sentence only on the following ground:

> ,,The learned trial ]udge erred in law and fact when she subiected the appellant to a sentence that was harsh, manifestly excessive and inconsistent with previous iudicial precedents."

### Legal Representation

At the hearing of the appeal, the appellant was represented by Mr' Mutange Ian, on State brief while the respondent was lePlesented by Ms. Lilian Alum Omara, a Chief State Attorney.

&- L.-+-

5 Due to the COVID-19 pandemic restrictions, the appellant was not physically present in Court but he attended the proceedings via video link using Zoom technology from Prison.

Both counsel filed and adopted their written submissions.

## Submissions of Counsel

Counsel for the appellant submitted that the learned trial Judge erred in law and fact when she subjected the appellant to a sentence that was harsh, manifestly excessive and inconsistent with previous judicial precedents. 10

Counsel argued that there is need for consistency /parity in sentencing of cases with similar circumstances. He referred Court to the case of Abaasa lohnson

- and Muhwezi Siriri os. ll7anda, Court of Appeal Ctiminal Appeal No'33 of 2070, where Court cited the supreme Court case of Lioingstone Kakooza os, lJgantla, Ciminal Appeal No. 17 of 7993, which stated that sentences imposed in previous cases of similar nature, while not being precedents, do afford material for consideration. 15 - He further cited Rule 6 (c) of the Constitution (Sentencing Guidelines for Courts of Judicature) (Practice) Directions, 2013, which provides:- 20

"(c) the need for consistency with appropriate sentencing levels and other means of dealing with offenders in respect of similar offences committedin similarcircumstances."

Counsel contended that, in the instant case, the learned trial Judge made no reference to previous cases in which a similar offence was committed and the accused people sentenced.

- 5 He submitted that in the recent case of Atliga Johnson os. Uganda, Court of Appeal criminal Appeal No.157 of 2010, Cowt cited a number of authorities in which the sentence imposed for a similar offence of murder were in the range of 19 to 20 years. According to counsel, this Court in Adiga lohnson (Supta) cited the cases of Tunwesigye Anthony trs. llganda, Court of Appeal Criminal - Appeal No.tI6 of 201.2 and Anywar Patrick and anor as. Uganda, Court of Appeal Criminal Appeat No.166 of 2009, where the appellants were convicted for the offence of murder and were sentenced to 20 years and 19 years imprisonment, respectively. 10

Counsel further relied on the case of llweru lackline Nsenga as. uganda, court

of Appeal Criminal Appeal No.824 of 2015, where the appellant run the husband over with car, causing his death and this Court upheld a sentence of 20 yearc imprisonment for the offence of murder. 15

Counsel prayed that the sentence of 25 years imposed on the appellant by the trial Judge, be found to be excessive, harsh and inconsistent with the previous decisions of this Court. He prayed that the said sentence be reduced to a sentence of 20 years from which the period of 4years sPent on remand be deducted there by reducing the sentence to 16 years imprisonment.

On the other hand, counsel for the respondent submitted that the trial Judge considered both the mitigating and aggravating factors before sentencing the

appellant to 25 years imprisonment. 25

Counsel noted that although the date of sentencing is not indicated on page 18 of the record of appeal, the warrant of commitment at page 28 of the record shows that the appellant was convicted and sentenced on 7th June 2011. She argued that this was before the decision in Rwabugande Moses tts. uganda,

kz: 4

5 Suprane Court Criminal Appeal No.25 of 2014, which requires an arithmetic deduction of the period spent on remand. Counsel contended that the appellant was convicted and sentenced during the regime of Kizito Senkula os. Uganda, Suprane Court Criminal Appeal No.24 of 200'l and others, which did not require a trial Court to apply a mathematical formula in consideration of the period spent on remand. 10

Counsel submitted that this Court in its recent decision of Biryomushi Alex tts. llganda, Criminal Appeal No. tl64 of 2016 restated the position in Katureebe Boaz and another tss. llganda, Supreme Court Criminal Appeal No.066 of 2011, in which it was held: "Consistency in sentencing is neither a mitigating nor an

aggratsating factor, the sentence imposed lies in the discretion of the court uhich in exercise thereof may cortsider sentences inrposed in other cases of a similar nature," 15

She further argued that the sentence of 25 years imprisonment is consistent with sentences issued by this Court. Counsel cited the cases of Kidega Joseph and

- arror 7)s. Llganda, Suprene Court Ctiminal Appeal No'07 of 2019 and Nsabimana Richartl zts. llganda, Supreme Court Criminal Appeal No.12 of 2017, inwhich the appellants were convicted for murder and sentenced to suffer death and their sentences were varied to sentences ranging from 30 to 39 years imprisonment. 20 - Considering the authorities above, counsel contended that a sentence of 25 years imprisonment is appropriate in the circumstances of this case. She prayed that Court upholds the sentence and dismisses the appeal. 25

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## 5 Resolution of the appeal

This is an appeal on sentence only. We are alive to the duty of this Court as the first appellate Court to re-appraise the evidence before the trial Court subjecting it to fresh scrutiny and make its own inferences of law and fact'

We have carefully studied the Court record, the submissions of counsel for each side as well as the law and the authorities cited.

The appellant faults the trial Judge for imposing a 25 years imprisonment sentence which he considers harsh and excessive and not in line with previous judicial precedents.

ln Ogalo s/o Ozouora zt. Republic, 119541 24 E. A. C. A 270 and lames os. Republic

1195011S EACA 1.47, Court emphasised that the appellate Court is not to interfere with a sentence imposed by the trial Court which has exercised its discretion on sentence unless the sentence is illegal or the appellate Court is satisfied that in the exercise of the discretion the trial Court ignored to consider an important matter or circumstances which ought to be considered when passing the sentence or the sentence was manifestly so excessive or low as to amount to an injustice. 15 20

In the instant case, the trial Judge while sentencing stated:-

"The conoict is a first offender toho has been itt pre-trial/remand for almost 4 years. The traxinuun sentertce of the offence he is conoicted of is death. This offence is oery transparent in this area. Taking all the abotte into account, he is sentenced to 25 years intprisonment." lSicl

From the above, it is clear that the trial Judge considered both the aggravating factors and the mitigating factors while sentencing the appellant'

- 5 The trial Judge took into account the 4 years that the appellant spent on remand as required by the law then in Kizito senkula os. llganda, s.c.c. A No.24 of 2001; Kabuye senoauo os. llganda, s.c.c. A No.2 of 2002; Katende Ahamed zts. llganda S. C. C. A No.6 of 2004 and Bukenya loseph as' llganda, S'C'C'A No'17 of 2010 where Court held that "taking iflto corrsideration of the time spent on - remand rloes not necessitate a sentencing Court to apply a nnthematical fonrutla." 10

The trial Judge was not bound to follow the arithmetic principle in Rzoabugande Moses aersus llgaila, supreme Court Criminal Appeal No.25 of 2014, made on 03.rMarch 20'17,6 years after her decision was made. See: Abelle Asuman as.

llganila, Suprane Court Criminal Appeal No.066 of 2016' 15

Counsel for the appellant argued that the sentencing range for murder is between 19 to 20 years, we disagree. InKyalimpa Edward as. lJganda, criminal Appeal No.70 of 7995, Court held:- ,,An appropriate sentence is a matter fot the discretion of the sentencing ludge, Each case presents its own facts upon zohich

aludge exercises his discretion." 20

> The supreme Court in crininal Appeal No.03 of 2013, Akbar Hussein Godi os. l)ganila, upheld the concurrent decision of the trial Court and the Court of Appeal and confirmed a sentence of 25 years imprisonment for the offence of M urder.

This Court in the case of ssemanda Christopher antl Muyingo Denis as. uganda, critninal Appeal No.77 of 2010, upheld a sentence of 35 years imprisonment for the offence of murder 25 (

5 In the instant case, the trial Judge rightly used her discretion to sentence the appellant to 25 years imprisonment upon consideration of both the aggravating factors and the mitigating factors as well as the period spent on remand.

For the reasons above stated, we find that the sentence of 25 years imprisonment was not illegal nor based on wrong principles and neither was it manifestly harsh nor excessive given the circumstances of this case.

We find no reason to interfere with it. The sentence was given in accordance with the law and due consideration of the circumstances of the case.

From the record, the High Court Judgment is dated 7il'July 2011, however, the record of proceedings at the High Court indicate that the Judgment was

delivered in open Court on 7th June 2011, the Warrant of Commitment dated 7th June 2011 also shows that the appellant was convicted and sentenced on 7th June 20't'1. 15

The date on the High Court Judgment was written in error. The correct date of conviction and sentence as seen from the record of proceedings and the Warrant of Commitment, is therefore the 7th of June 2011.

We accordingly uphold the decision of the trial Court and dismiss this appeal. The appellant should continue serving the sentence of 25 years imprisonment from 7th fune 2011, the date of conviction.

y Dated at Kampala this.?2\* day of 25 8 .2022 w

RICHARD BUTEERA DEPUTY CHIEF JUSTICE

ELIZABETH MUSOKE ]USTICE OF APPEAL

RION BARISHAKI

JUSTICE OF APPEAL