Tayebwa v Uganda (Criminal Appeal 97 of 2017) [2024] UGCA 224 (23 August 2024)

#### THE REEPUBLIC OF UGANDA

# IN THE COURT OF APPEAL OF UGANDA AT MBARARA

#### CRIMINAL APPEAL No. 097 of 2017

(Coram: Buteera, DCJ, Gashirabake and Kihika, JJA)

TAYEBWA SEITH ::::::::::::::::::::::::::::::::::::

#### **VERSUS**

**UGANDA:::::::::::::::::::::::::::::::::::**

(Appeal from Conviction and sentence of the High Court of Uganda at Rukungiri before Hon. Justice Moses Kazibwe Kawumi dated $13<sup>TH</sup>$ December, 2016)

#### **JUDGMENT OF COURT**

#### **Introduction**

The appellant was indicted and convicted of aggravated defilement contrary to **Section 129 (3) and (4) (a)** of the Penal Code Act Cap 120. He was sentenced to 17 years imprisonment.

The appellant being dissatisfied with the decision of the trial court filed this appeal against both conviction and sentence on the following grounds:

- 1. The learned trial Judge erred in law and fact when he adopted a wrong and improper procedure in recording the plea of guilty hence occasioning a miscarriage of justice - 2. The learned trial Judge erred in law when he convicted and sentenced the appellant based on an irregular and equivocal plea hence occasioning a miscarriage of justice.

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### Background

The facts as ascertained from the record are that; the appellant a one Tayebwa Seith, was married to a one Ahimbisibwe Ketty and the couple was blessed with four children who included; Akandinda Abigil 8, Gumoshabe Deborah 12, Yefisa Obed Ehudi and Muzipa. The couple lived with their children at Kasharazi Cell, Kashaym parish in Rukungiri District.

On the 11th day of July, 2Ol4 the couple had domestic misunderstandings and as a result, Ms. Ahimbisibwe Ketty left their matrimonia-l home. When Ahimbisibwe returned to her matrimonial home, she was informed by her daughter Gumoshabe Deborah that while she was away from home, her father, the appellant, had on several occasions in the night, sneaked to their bedroom and had sexual intercourse with her. Gumoshabe revealed this information to her mother on l3lO7 l2ol4. Ahimbisibwe Ketty decided to report the matter at Rukungiri police station and investigations into the matter commenced. In the course of investigations, it was established that the appellant also had sexual intercourse with his second daughter Akandinda Abigil and a separate file was opened.

The victim was examined on PF3 by Dr. Musimenta Emmanuel on 16/07 /2014 and found with a raptured hl,rnen with Vulval and vaginal lacerations. The doctor attributed these injuries to forceful sexual intercourse. The appellant was examined on PF 24 and found to be an adult of sound mind. M

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At the trial the appellant opted to enter a plea bargain agreement in which he pleaded guilty and agreed to a custodial term of 17 years which was approved by court.

Later the appellant appealed to this court challenging the procedure of recording the plea which resulted into conviction and sentence and he prayed that both conviction and sentence be set aside.

### Representation

At the hearing of the Appeal, the appellant was represented by Mr. Turyahabwe Vincent, while the respondent was represented by Mr. Onencan Moses, Assistant Director Public Prosecution.

Both Counsel proceeded by way of written submissions. Counsel for the appellant only made submissions in respect to the first ground as presented in the memorandum of appeal and so the respondent's counsel made submissions in respect to ground one (1).

## Court's consideratlon of the Appeal

This being a first appeal, this Court has the duty to re-evaluate the evidence of the trial court in order to come to a its own conclusion of the matter. Rules 3O(1f(a) of The Judicature (Court of Appeal Rulesf Directions sets out the duty of the first appellate Court.

The Supreme Court in Kifamunte Henry Vs. Uganda Supreme Court Criminal Appeal No. 10 of t997 held that;

> "we agree that on a first appeal, from conviction by <sup>a</sup> Judge the appellant is entitled to have the appellate courtts own consideration and wiews ofthe evidence as a whole and its own decislon thereon. The first appellate

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court has a duty to rewiew the evidence ofthe case and to reconsider the material before the trial Judge. The appellate court must then make up its own mind not disregarding the Judgment appealed from but carefully weighing and considering it"

This court in considering the facts before it, is alive to the principle in the above case and shall consider the submissions as well as provisions and authorities cited in resolving this appeal.

## Appellant's submissions

Counsel for the appellant faulted the procedure the learned trial Judge adopted while recording the plea. He cited Sections 60 and 63 of the Trial on Indictments Act cap 23. Counsel further submitted that whereas the Act provides that an accused person may be convicted upon his own plea of guilty to the indictment, there is an established procedure that courts of law are bound to follow. Counsel cited the case of Adan Vs Republic [1973] EA 45, In addition, counsel submitted that courts must protect and promote a right of an accused person to a fair hearing as enshrined in the Constitution. Counsel cited Article 28(3) of the Constitution of the Republic of Uganda. It was the appellant's submission that at plea taking, the procedure for taking plea was improper and as such the record does not show that the appellant admitted each and every ingredient ofthe offence charged. The appellant prayed that this Honourable Court allows this appeal, quashes the conviction and sets aside the sentence. &

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### Respondent's submission

In reply, counsel for the respondent conceded that Sections 60 and 63 of the Trial on Indictments Act which provide for the taking of pleas ought be followed. Counsel however submitted that the procedure for plea taking was properly followed by the learned trial Judge. It was further submitted for the respondent that the appellant appeared to have failed to appreciate the record and as such no miscarriage of justice was occasioned.

In further reply, the respondent submitted that when the appellant appeared in court, the indictment and the facts were read and explained to him in Runyankole. He pleaded guilty and agreed to the facts.

Counsel further submitted that the appellant voluntarily entered into a plea bargain agreement wherein he agreed to a conviction of the offence of aggravated defilement and sentence of 17 years, which was endorsed by him, his lawyer and the State Attorney. The trial court duly endorsed the agreement. It was contended by Counsel for the respondent that according to the plea bargain agreement, the appellant's rights were explained to him by his counsel and that there was also a court clerk who interpreted to the appellant. Counsel submitted that the appellant clearly understood the proceedings and he went ahead to append his signature on the agreement. Counsel cited Muchunguzi Apollo vs Uganda Criminal Appeal No. 24O of 2OL7 for the proposition that the plea bargain agreement as a recent innovation, provides for the scope in respect to a promise requiring an accused person to plead guilty to a charge in exchange for recommendation for a lesser sentence or offence.

The respondent submitted that there was no illegality proved by the appellant to have occurred during the plea taking process arld prayed that this appeal be dismissed, the conviction and sentence be upheld.

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# Determination of the appeal

Section 61 of the Trial on lndictment Act provides for the procedure to be followed on the taking of the plea as follows;

"The accused person to be tried before the High Court shall be placed at the bar unfettered, unless the court shall cause otherwise to order, and the indictment shall be read over to him or her by the chief registrar or other officer of the court, and explained if need be by the ollicer or interpreted by the interpreter of the court, and the accused person shall be required to plead instantly to the indictment, unless, where the accused person is entitled to service ofa copy ofthe indictment, he or she object to the want ofsuch service, and the court shall find that he or she has not been duly served with a copy."

We agree with both counsel on the authority cited of; Adan v Republic [1973] EA 445 as far as guidance to courts on the procedure for recording plea is concerned. The East African Court of Appeal (as it then was) stated as follows: -

gWhen d. person 7s charged. uith an otJense, the charge and the partlculars thereof should be read out to hlm, so Jar as possibte in his oun language, but tf that ls not posslble ln a language uthich he can speak and understand. Thereafi.er the coutt should explaln to hlm the essentlal lngredlents of the charge and he shouldbe a.sked tf he adrrnltsthem. If he does o,dm:lthls dttsuter should be recorded as neorlg as posslble ln hls outn words and then plea of gulltg fonnallg entered. The proseattor

w- Wage 5 of 11 should. then be asked to state the facts of the case and the c,ccused be giaen an opportunltg to dtspute or explain the facts or to add. ang releaant facts he mag wish the court to knou. If the accttsed does not agree ulth the Jacts as stated bg the prosecutor or introduces neut tacts nthich, tf true might raise a questlon cs to his gullt, a change of plea to one of not guiltg should be recorded ond the trlal should proceed. If the accused, does not dlqrute the alleged facts ln ong rnaterlal respect, a conulctlon should be recorded and farther Jacts relatlng to the questlon of sentence should. be gluen beJore sentence is passed.u

In the earlier case of; Tomasi Mufumu v R [1959] EA 625 court observed as follows;

o...,lt is very desirable that a trlal Judge, on bebtg o;ffered a plea uhlch he construes rzs c plea of gulltg in a murder case, should not onlg satisfu htnself that the plea ls on unequluocal plea, but should satls;fg hilnselt also and record that the accused und.erstands the elements uthlch constihtte the o;ffense oJ murder,.,,and und.erstand that the penaltg ls death.'

Where the plea taken does not a-rnount to an unequivocal plea of guilty to the offense to which the accused is convicted, the conviction must be quashed. See; R v Tambukiza s/o Unyonga [1958] EA2l2

We have borne the above principles in determination of this ground of appeal.

The plea taking proceedings which are at pages 7-8 ofthe Record ofAppeal were as follows;

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oCourt: indictrnent read to the accused ln Rungankole- Rukiga. Acatsed.: I understand the charge I plead guiltg. Facts On 13/07/2014, the accused perfortned a setanal lntercourse on Gurnoshabe Deborah a girl under 72gears. The o,ccr.tsed utas the tather of the ulctlm. HIV test. Accused: 7t ls tt'ue, State: ue had a plea bargain meeting and ue proposed 77 gears for the accused Court: Medlcal report ad.mltted as PE.7 & P8,2. Mother ofthe vlctlm. State: I agree to the proposed 77gears. Court: I conuict gou on gour oun plea of guilt, You wlll serae 77 gears ln prlson,o

Counsel for the appellant faulted the learned trial Judge for failure to follow the correct procedure in recording the plea. We note that in cases where there is a plea bargain agreement such as this one, Rule 12 of the plea bargain Rules is very instructive in guiding courts and it provides in part as follows;

> "2), The charge shall be read ond explained to the accused ln a language that he or she understands and the accused shall be lnulted to take plea.

> 3), The prosecutlon shall lag betore the court the tactual basls contalned in the plea bargaln agreement and the court shall detennlne uhether there exlsts a basis for the agreement.

> 4). The accused person shall freelg and voluntarllg, wlthout threat or use offorce, execute the agreement ulth lull understandlng of all the nlattersu

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It is clear that Rule 12(2f of the Plea Bargain Rules, requires the charge to be read and explained to the accused in a language that he or she understands arld the accused shall be invited to take plea. In the instant case, we are satisfied that the indictment was read to the appellant in Runyankole- Rukiga, together with the facts as reflected in the Record of Appeal.

This court in Musinguzi Apollo vs Uganda (20191 UGCA 157, held as follows;

> uuthere there 7s a plea borgaln, the accused shall stlll haae to plead gutltg and the proceedlngs ln plea taklng should be on record.u The same posltlort tt as reiterated in Ba Go US ond. Crlminal I No. 337 2077. reported)

It is our considered view, that the procedure as laid down in the case of Adan v R lsupraf and Tomasi Mufumu v R (supraf for the recording of plea of guilty was duly followed. The indictment and the facts were read to the appellant who responded; uI understand the chorge I plead gulltg", '"lt 7s tnte' respectively. Given the circumstances, we consider that the plea of guilty to the charge of aggravated defilement was clearly unequivocal.

We thus find that the trial Judge rightly convicted the appellant on his own plea of guilty of the offense of aggravated defilement contrary to Sections 129 (31 and (41 (af of the Penal Code Act. This ground of appeal therefore fails.

Before we take leave, we have observed that the agreed sentence was 17 years' imprisonment. The appellant however did not make any

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submissions in respect to the period the appellant spent on remand. The trial Judge omitted to take into account the period that the appellart had spent on remand. This is a mandatory requirement under the provisions of Article 23(8f of the 1995 of the Constitution which provides as follows

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"Where a person is conuicted and sentenced to a term of imprisonment for an offence, ang peiod he or she spends in lawful custodg in respect of the offence before the completion of his or her trial shall be taken into account in tm <sup>L</sup> the term o imprisonment." fEmphasis added]

In Rwabugande Vs Uganda, SCCA No. 25 of 2OL4, the expression "take into account" the remand period was interpreted by the Supreme Court to involve arithmetical deduction thus:

"It is our uiew that the taking into account of the period spent on remand bg a court is necessailg aithmetical. This is because the period is knoutn with certaintg and precision; consideratton of the remand peiod should therefore necessailg mean reducing or subtracting that peiod from the final sentence. That period spent in lauful custody pior to the trial must be specificallg credited to an accused."

The trial Judge's failure to deduct the period spent on remand rendered the sentence illegal for failure to comply with Article 23(8f of the 1995 of the Constitution. We therefore set aside the sentence.

We now proceed to re-sentence the appellant pursuant to Section 11 of the Judicature Act. The appellant did not waste court's time and pleaded guilty to the offence of murder whereupon he entered into a plea bargain

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agreement. In the circumstances, we think that the appropriate sentence would be 17 years of imprisonment. We deduct the period of 2 years and 5 months that the appellant had spent on remand. The appellant is hereby sentenced to a term of 14 years and 7 months' imprisonment, with effect from the 13ft December, 2016, the date on which he was convicted.

We so order

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Dated at and delivered this day of (]4V <sup>2024</sup>

RICHARD BUTEERA, DC^I

CHRTSTOPHER GASHIRABAKE, JA

V JOHN KIHIXA, JA