Tandeka v Uganda (Criminal Appeal 55 of 2017) [2024] UGCA 169 (17 July 2024)

# THE REPUBLIC OF UGANDA

# IN THE COURT OF APPEAL OF UGANDA AT MASAKA

### CRIMINAL APPEAL NO. 055 OF 2017

(Coram: Hellen Obura, Muzamiru Kibeedi & Moses Kazibwe JJA)

TANDEKA STEVEN::::::::::::::::::: **.....................................**

#### **VERSUS**

#### UGANDA:::::::::::::::::::::::: **:::::::::::::::::::::::::::::::::::::**

(An appeal from the decision of the High Court at Masaka before His Lordship Hon. Justice Dr. Flavian Zeija dated 3<sup>rd</sup> November, 2016 in Criminal Session Case No. 142 of 2016)

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### JUDGMENT OF THE COURT

# Introduction

This appeal arises from the decision of the High Court sitting at Masaka delivered on 3<sup>rd</sup> November, 2016 by Dr. Flavian Zeija, J (as he then was) in which the appellant was convicted. on his own plea of guilty, of the offence of murder contrary to sections 188 & 189 of the Penal Code Act and sentenced to 20 years' imprisonment.

The facts giving rise to this appeal as ascertained from the court record are that on 11<sup>th</sup> September 2016 at Kashama Village in Lyantonde District, the appellant murdered Korukiiro Jackline (the deceased). The appellant pleaded guilty to the indictment and was convicted on his own plea and sentenced to 20 years' imprisonment. Being dissatisfied with the decision of the learned trial Judge, the appellant has appealed to this Court on one ground that the learned trial Judge erred in law and fact when she sentenced the appellant to 20 years' imprisonment which sentence is harsh, illegal and excessive in the circumstances of the case.

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Lov<br>Not

At the hearing of this appeal, Mr. Sam Sekyewa represented the appellant on State Brief while $\mathsf{S}$ Mr. Ssemalemba Simon Peter, Assistant DPP held brief for Mr. Kulu Idrambi Assistant Director of Public Prosecution represented the respondent.

Counsel for the appellant sought leave to validate the notice of appeal that was filed out of time and to appeal against sentence only which was granted as there was no objection by the respondent. He submitted that the sentence is illegal because the learned trial Judge did 10 not take into account the period the appellant spent on remand. He argued that while sentencing, the learned trial Judge did not arithmetically deduct the period the appellant spent on remand which constituted an illegality. He referred to Article 23(8) of the Constitution and the decisions in **Naturinda Tamson vs Uganda, Criminal Appeal No. 13 of 2011;** Rwabugande Moses vs Uganda, SCCA No. 25 of 2014 and Opiyo Kenneth vs Uganda, 15 **CACA No. 187 of 2014** to support his submissions. He prayed that this Court finds the sentence illegal and sets it aside.

Without prejudice to the foregoing, counsel submitted in regard severity of sentence that the period of 20 years imposed by the learned trial Judge is harsh and excessive. He prayed that this Court interferes with the sentence and invokes section 11 of the Judicature Act which places it in the same position as the trial court to impose an appropriate sentence. Counsel invited this Court to take into account the mitigating factors namely that; the appellant was a first offender, he pleaded guilty and did not waste court's time and he is still youthful. He cited the decisions in **Jackline Uwera Nsenga vs Uganda, CACA No. 312 of 2013** and **Nkuruziza**

Julius vs Uganda CACA No. 12 of 2009 where this Court upheld sentences of 20 years and 25 17 years' imprisonment respectively. Counsel prayed that this Court sets aside the sentence of 20 years' imprisonment and substitute the same with a lesser sentence.

In response to the contention that the learned trial Judge did not deduct the period spent on remand, counsel for the respondent submitted that the decision in the instant appeal was made on 2<sup>nd</sup> November, 2016 and therefore the case of **Rwabugande Moses vs Uganda**


(supra) which was cited by counsel for the appellant which requires an arithmetical deduction $5$ is not applicable.

He further added that the sentence is not illegal since it is sanctioned by law. He argued that counsel for the appellant did not explain how illegal the sentence was because the law provides for the sentences and the sentencing ranges.

Regarding harshness and excessiveness of sentence, counsel submitted that a sentence of 10 20 years' imprisonment is not harsh given the fact that the offence of murder attracts a maximum sentence of death. He argued that there are cases of murder where courts have sentenced accused persons to 20 years and above and this Court has declined to interfere with such sentences. He cited the cases of *Florence Abbo vs Uganda, CACA No. 168 of* 2013. Biryomumisho Alex vs Uganda, CACA No. 464 of 2016, Godi Akbar Hussein vs 15 Uganda, SCCA No. 3 of 2013, Jackline Uwera Nsenga vs Uganda (supra) and **Ssekitoleko Yudah and ors vs Uganda, SCCA No. 33 of 2014** to support his submissions. Counsel prayed that this Court upholds the sentence and dismisses this appeal.

The duty of this Court as a first appellate court is to re-evaluate the evidence on record, reconsider the materials before the learned trial Judge and come up with its own conclusion. $20\\$ See: Rule 30 of the Judicature (Court of Appeal Rules) Directions. We are also well aware of the principle that govern this Court as an appellate regarding the sentence imposed by trial court.

We have considered the submission for the appellant on illegality and severity of the sentence imposed on him by the trial court and the supporting authorities. Similarly, we have considered 25 the submission of the respondent in opposition to the appeal.

Article 23 (8) of the Constitution provides as follows:

"Where a person is convicted and sentenced to a term of imprisonment for an offence, any period he or she spends in lawful custody in respect of the offence before the completion of his or her trial shall be taken into account in imposing the term of imprisonment."

We have carefully studied the court record and we note that after both counsel had presented the aggravating and mitigating factors, the learned trial Judge stated as follows:

"The convict killed the deceased in the most gruesome manner. This court finds 20 years" imprisonment lenient since the convict is remorseful. The period of remand shall be taken into consideration."(emphasis added)

From the above wording of the sentence, it is our well-considered view that when the learned trial Judge stated that "the period of remand shall be taken into consideration" it implied that 15 he did not take into account the period the appellant had spent on remand during sentencing which contravened Article 23 (8) of the Constitution. Article 23 (8) of the Constitution enjoins the sentencing judicial officer to take into account the period spent on remand. By saying the period of remand shall be taken into consideration, the learned Judge relegated his constitutional duty to another person and the net effect is that he failed to do what was 20 mandatorily required of him. That sentence was therefore illegal for failure to comply with a mandatory constitutional provision. We accordingly set it aside and invoke section 11 of the Judicature Act which gives this Court the powers, authority and jurisdiction as that of the trial court to impose an appropriate sentence of its own.

In so doing, we shall take into consideration the aggravating factors presented by the prosecution which were that the appellant took a life of an innocent person. The mitigating 25 factors presented for the appellant were that; he was a first offender, he was remorseful and did not waste court's time. He was 31 years of age at the time he committed the offence and he had been on remand since September 2016. A lenient sentence was prayed for.

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We shall also take into consideration the range of sentences in cases of a similar nature so $\mathsf{S}$ as to arrive at an appropriate sentence.

In Oyita Sam vs Uganda, CACA No. 307 of 2010, this Court set aside the sentence of death for the offence of murder where the appellant pleaded guilty and substituted it with 25 years. The appellant had murdered his own brother over land wrangles.

In Emeju Juventine vs Uganda, CACA No. 095 of 2014, this Court set aside the sentence 10 of 23 years imposed on the appellant who pleaded guilty for murdering his wife and substituted it with 18 years' imprisonment.

Upon taking into account both the aggravating and mitigating factors set out above and the range of sentences for the offence of murder in the above cited authorities and others that we have not cited, we find a sentence of 20 years' imprisonment appropriate in the circumstances of this case. However, as required by Article 23 (8) of the Constitution, we deduct the period of 1 month and 21 days the appellant spent on remand and sentence him to 19 years, 10 months and 9 days to be served from the date of his conviction, which is 03/11/2016.

In the result, this appeal is allowed in the above stated terms.

We so order. 20

19th<br>day of. Dated at Masaka this .2024

Hellen Obura JUSTICE OF APPEAL

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Muzamiru M. Kibeedi JUSTICE OF APPEAL

Moses K. Kazibwe **JUSTICE OF APPEAL**

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