Tinkibyetaho v Uganda (Criminal Appeal 246 of 2011) [2024] UGCA 257 (2 September 2024)

Full Case Text

#### 5 THE REPUBLIC OF UGANDA

# IN THE COURT OF APPEAL OF UGANDA HOLDEN AT MBARARA

(Coram: Euct K. Lustuata, JA, Oscar Kihika, JA, Asa Mugenyi, JA)

# CRIMINAL APPEAL NO. 0246 of2Oll

#### BETWEEN

# TINKIBYETAHO GADI :::::::::::::::::::::::::::::::::::::::::]::::: APPELLANT

AND

UGANDA:::: : : :: :: : : : 3 : :: : : : : : : : :: : : : : : : : : : : : : : : : : : : : : :: : RESPONDENT

[Appeal from the Judgement of the High Court sitting at Mbarara in Criminal Session Case No. 0258 of 2OO9 by Hon. Justice J. W. Kwesiga delivered on 18th October, 2Of U 15

# Introduction

1l The Appellant was charged with two counts of murder contrar5r to Section 188 and 189 of the Penal Code Act Cap.l28. He was convicted and sentenced to 25 years for each count, of murder which sentences were to run consecutively. 20

### Brief facts

2] The brief facts of the case as discerned from the record, are that the Appellant developed misunderstandings with Tukahirwa Immaculate his niece and step-daughter, with whom he shared a home in Rwakakungu Cell, Bugarihe Parish, in Kakoma Sub County. On 9/7/2009, the Appellant picked a quarrel with Tukahirwa because she returned home late. He assaulted her and 25 30

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5 for self-protection, she ran to a bedroom where she found T\rmwekwase Rosemar5r, her mother. The Appellant followed her into the room and when T\-rmwekwase asked him why he had assaulted T\rkahirwa, the Appellant picked an axe, and hit each of them on the head. The two victims died on the spot. The Appellant directed the other two children in the home to report the incident to the LCl Chairperson and then fled from the home. After the bodies of the victims were discovered, the Appellant was retrieved and then arrested from a well where he had hidden. He was tried for murder, and following a full trial, convicted and sentenced to the term above. Being dissatisfied with the decision of the High Court, he filed an appeal on one ground only that: -

> The learned tial ludge erred in law and fact uhen he imposed a harsh and excessiue sentence of 50 gears on truo counts of murder to ntn CONSECUTII/ELY thus occasioning miscarriag e of justice.

3l When the matter was called for hearing on 29/9/2024, Ms. Princess Benita Namusisi represented the Appellant while Ms. Nabasa Caroline Hope, a Principal Assistant Director of Public Prosecutions and Kennedy Kubokwe, a State Attorney, represented the Respondent. Ms. Nabasa drew our attention to the fact that two notices of appeal were filed on 18/lI/2O21 and OI / 72 /2021. Following protracted submissions by the Appellant's counsel, we allowed her prayer to abandon the second notice and proceed only with the one filed on lSlIl/2O21. We in addition allowed Ms. Namusisi's prayer for leave to proceed against the order of sentence only.

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# s Submissions for the Appellant

- 4l Counsel for the Appellant started his submissions by referring to Section 11 of the Judicature Act which gives this honourable Court power and authority to impose an appropriate sentence of its own. Counsel then cited the case of Ogola S/o Owowa vs R (1954) 24 EACA 27O where it was held that in exercising its jurisdiction, an appellate court does not alter a sentence on the mere ground that if members of the appellate court had been trying the Appellant, they might have passed a somewhat different sentence. It was also held in the same case that an appellate court will only ordinarily interfere with the discretion exercised by the trial Judge only if it is evident that the Judge acted upon a wrong principle, or over looked some material fact or, that the sentence is harsh and manifestly excessive in view of the circumstances of the case. Counsel cited Ssekitoleko Yudah and Others vs Uganda, SC Criminal Appeal No. 33 of 2Ol4 followed in Kamya Abdallah & 4 Others vs Uganda, SC Criminal Appeal No. 24 of 2OLS, in that regard. 15 20 10 - 5l Appellant's counsel relied largely on Sections 2 arad 3(3) of the Trial On Indictment Act which authorizes the High Court to pass arly sentence by law in cases where there is conviction for several offences at one trial. He argued that in the case of multiple convictions, the sentence is deemed to be a single sentence. Counsel referred to Magara Ramadhan vs Uganda Criminal Appeal No. 146 ol 2OO9 for guidance.

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- 5 6l Counsel submitted that in the instant case, the Appellant was convicted on two counts of murder and sentenced to 25 years' imprisonment on each count, making a total of 50 years' imprisonment, a sentence she considered as harsh and excessive. Counsel added that the trial Judge only considered the aggravating factors and as a result arrived at an excessive sentence. She also opined that the Judge was unnecessarily harsh when he stated that the Appellant does not deserve liberty of ordinary people because she is a danger to society and deserved a sentence to keep him away from society. 10 - 7l Counsel contended that the purpose of a sentence should not be to deprive the offender of any hope of rehabilitation and that where the offender is older, the sentence should not exceed their expected lifespan. During proceedings in Court. Ms. Namusisi added that according to the Trial on Indictment Act (TIA), it is the aggregate sentence that the Court should consider. She then prayed that the sentence of 25 years' imprisonment on each count be reduced. Counsel further prayed that the remand period of 2 years' imprisonment be considered and the principle of consistency be followed before sentencing the Appellant. For guidance, he referred to Aharikundira Yustina vs Uganda, SC Crimlnal Appeal No. 27 of 2O15. 15 25 20 - 8l Counsel then drew our attention to other decisions of the Supreme Court to argue that in comparison, the sentence against the Appellant in the instant case is harsh and excessive. She in particular referred the Court to the case of Kamya Abdalla & 4

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- others vs Uganda, SC Criminal Appeal No. 24 of 2015 where $\mathsf{S}$ the Supreme Court following the decision of **Suzan Kigula & Ors** vs Uganda, HCT-00- CR—SC- 0115, to arrive at a sentence of 18 years' imprisonment. - 10

$9$ In conclusion, counsel prayed that the sentence of each count be reduced, period spent on remand be considered, and that the sentences given should run concurrently.

#### **Respondent's submissions**

$10$ In response, Respondent's counsel submitted that the law governing interference of a sentence by the appellate court has been long settled. In particular, that an appropriate sentence is a 15 matter for the discretion of the sentencing Judge and interference by the appellate court should be only if the sentence is illegal or unless Court is satisfied that the sentence imposed by the trial Judge is manifestly so excessive as to amount to an injustice. For guidance, she cited **Kyalimpa Edward vs Uganda, Criminal** 20 Appeal No. 10 of 1996 cited with approval in Karisa Moses vs Uganda, SC Criminal Appeal No. 23 of 2016.

$[11]$ Counsel contended that the Appellant was convicted and sentenced to 25 years' imprisonment only on each count of murder that was premeditated and gruesomely executed against family members. Counsel considered the sentence of 25 years' imprisonment on each count of murder not harsh as Court departed from the maximum sentence which is death.

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- 5 l2l Counsel contended further that the trial Judge handed down a sentence which was consistent with the legal regime. She referred to the Constitution (Sentencing Guidelinea for courts of Judicature) (practice) Directions, (Sentencing Guldelines) Legal Notice No. 8 of 2OL3, 3'a Schedule, Part 1, where the starting point for the offence of murder is 35 years' imprisonment. Counsel however submitted that in the sentence, the Appellant was sentenced to 25 years only for each count. To counter Ms. Namusisi's submissions made in Court, Ms. Nabasa argued that the aggregate of 50 yea-rs was in fact lenient. 10 - 131 In regard to the Appellant's contention that the sentences should have run concurrently, Ms. Nabasa contended that ordering for the sentences to run concurrently or consecutively is still at the Judicial officer's discretion as provided for in Section 3(2) of the TIA. Counsel implored this Court to consider the peculiar manner in which the Appellant killed both deceased persons and for that reason be pleased to find that the cumulative effect of the lower court's decision of 50 years' imprisonment is appropriate, arrd not harsh. 15 20

141 Counsel then drew our attention to other decisions of the Supreme Court and this Court to argue that in comparison, the sentence against the Appellant in the instant case is neither harsh nor excessive. She cited for example, Bahemuka William & Another vs Uganda, CA Criminal Appeal No. 4 of 2OO3. This Court found that the grisly and barbaric manner in which the Appellants murdered the deceased deserved a deterrent sentence and thus 25 30

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- 5 10 did not interfere with the death sentence. Counsel in addition referred to Sebuliba Silaje vs Uganda, CA Criminal Appeal No. O3l9 of 2OO9, in which this Court upheld a sentence of life imprisonment despite the Appellant's plea of guilty. In addition, that of Ssemaganda Sperito & Another vs Uganda, Criminal Appeal No. 456 of 2OL6, where this Court upheld a sentence of 5O years' imprisonment for the Appellants who hacked a relative to death. - 151 Counsel submitted that the trial Judge considered the time spent on remand by the Appellant before sentencing him as well as the mitigating and aggravating factors that were advanced during the allocution proceedings. - 161 In conclusion, counsel submitted that the trial Judge did not act on any wrong principle, never overlooked any material factor and judiciously exercised his discretion when sentencing the Appellant. She prayed that this Honourable Court dismisses this appeal for lack of merit and uphold the sentence as passed by the trial Judge.

## Analvsis and decision of Court

171 We have carefully studied the record, considered the submissions for either side, as well as the law and authorities cited to us, and those not cited but which we find relevant to this matter. We are alive to the duty of this Court as a first appellate Court to review the evidence on record and reconsider the materials before the trial Judge, including the decision of the trial Court, and come to our Judgement. See: Rule 3O(1)(a) of the Judicature (Court of 30 25

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5 Appeal Rules) Dlrectlons S. I l3-1O. We do agree arld follow the decision of the Supreme Court in Kifamunte Henry versua Uganda, SC Criminal Appeal No. 10 of L997, where it was held that on a lirst appeal, this Court has a duty to;

" ... reuiew the euidence of the case and to consider the mateials before tlw tial Judge. The appellate court must then make up its ou.tn mind not di.sregarding tlrc judgement appealed from, but carefullg u.teighing and considering it."

- 181 There was only one ground of appeal against the sentence imposed. Counsel for the Appellant's contention is that the trial Judge sentenced the Appellant to a consecutive sentence of 25 years for each count, which made arr aggregate sentence of 50 years, considered as being harsh and excessive. Respondent's counsel disagreed. They considered the sentence as legal because the law gives a trial the Judge the discretion to issue a concurrent or consecutive sentence. Counsel contended that the sentence of 25 years' imprisonment on each count for what was a gruesome and premeditated murder of family members, was not excessive. Counsel provided authorities in which more severe sentences were handed down and maintained on appeal, and prayed that this court should not interfere with the sentence. 15 20 25 - 191 We agree with both counsel that an appropriate sentence rs a matter of discretion of the sentencing Judge and each case presents its own facts upon which a Judge exercises that discretion. See Karisa Moses vs Uganda, SC Criminal Appeal

1/,.t{ bf' 7 5 No. 23 of 2016. The principles guiding the appellate Court when considering any contest to the severity or legality of a sentence are well settled. As pointed out for the Appellant our powers to intervene are quite limited. We may interfere only in cases where it is shown that;

## 10

a. The sentence is illegal

- b. The sentence is manifestly harsh or excessive - c. Where there has been failure to exercise discretion - d. Where there was failure to take into account a material factor

e. Where an error in principle is made.

See Ogalo S/O Owoura vs R ll95,4l2L E. A. CA. 27O, Kyalimpa Edward vs Uganda, SC Criminal Appeal No. 10 of 1995; Kamya Johnson Wavamuno vs Uganda, SC Criminal Appeal No. 16 of 2OOO and Kiwalabye vs Uganda, SC Criminal Appeal No. 143 of 2OO1.

- 2Ol Section 2 of the M.al on Tnd.ictment Act provides for Sentencing Powers of the High Court. It provides that:

- When a person is conuicted at one tial of two or more distinct offences, the High Court mag sentence him or her for those offences to the seueral punishments prescibed for them which the court is competent to tmpose, those nishments uhen consisti o imoisonment, to commence the one after the expiration of the other, in such order as the court mau direct, unless

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5 the court directs that the punishments strall ntn concurrentlu.

- llt. For the purposes of appeal, tLE aqqreqate of consecutiue sentences i sed under this section in the case o conuictions for seueral offences at one tial, shall be deemed to be a sinale sentence Emphasis applied - 2ll The above provisions indicate that consecutive sentences are legal and in fact, the default sentences to be given for multiple convictions. It follows therefore, that for the purpose of this appeal, this Court is not concerned with whether or not the sentences are concurrent or consecutive. It is more concerned with the aggregate of the sentences. We are tasked to determine whether or not the aggregate sentence of 50 years is harsh and excessive in the circumstances of the case. See Magara vs Uganda 15

CA Criminal Appeal No. O146 of 2OO9. 20

221 We however must underscore the need for an Appellant to appreciate the reasons why the Judge arrived at a particular decision. The Supreme Court in Magala Ramathan versus Uganda SC Criminal Appeal No. 01 of 2OL4 referred to the persuasive authority of Ndwandwe vs. Rex 12OL2l SZSC 39, where the Supreme Court of Swaziland considered what judicious exercise of the sentencing discretion entails. It was held in part that.

> nThe exercise of the sentencing discretion must be a rational process in the sense that it must be based on the facts before the court and must shou.t the purpose

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the sentence is meant to achieve, the Court must be conscious and deliberate in its choice of punishment and the record of the court must show the legal reasoning behind the sentence. The legal reasoning will reflect the application of particular principles and the result it is expected to achieve. The choice of applicable principles and the sentence will depend on the peculiar facts and needs of each case. The choice will involve a consideration of the nature and circumstances of the crime, the interest of the society and the personal circumstances of the accused, other mitigating factors and often times a selection between or application of conflicting objectives or principles of punishment (our *emphasis*)"

- 23] It is therefore expected that whether a Judge opts for a consecutive - or a concurrent running of sentences, his or her reasoning should 20 be on record. Be as it may, it is a trite principle of law that in ordering a consecutive sentence, the total sentence must be proportionate to the offence and the circumstances surrounding each case. - The above principle is reflected in **Paragraph 8 of the Sentencing** $24]$ 25 **Guidelines. Paragraph 8** which provides that; - (1) Where the court imposes consecutive sentences, the court shall first identify the material part of the conduct giving rise to the commission of the offence and determine the total sentence to be imposed - (2) The total sum of the cumulative sentence shall be *proportionate to the culpability of the offender.* - $25$ In considering how the Judge arrived at the sentence he gave, we are best placed to consider the facts that led to the indictment as

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- $\mathsf{S}$ well as what was stated during the allocution proceedings. The submissions of both counsel when presenting the aggravating and mitigating factors are well stated on record. In aggravation, counsel submitted that the Appellant was a first offender who had been on remand for about two years. That he was convicted for two counts of murder and precious lives were lost and cannot be 10 replaced. The two little girls who witnessed are traumatised and that the convict had a duty to protect the deceased but instead, killed them. In mitigation, counsel only stated that the Appellant was remorseful and prayed for a lenient sentence. - When sentencing the appellant, the trial Judge had this to say: 15

"I have considered the submissions of both Advocates for the state and for the accused person. The accused is said to be 44 years old. He has been on remand for about two years. He is convicted of murdering two people at the same time in the most cruel manner that shows that he does not respect human life and therefore he does not deserve the liberty of ordinary people because he is a danger to society. For this reason, he deserves a sentence that keeps him away from society. Each of the offences he is convicted with attracts maximum sentence of death. I will save him of that and sentence him as follows: -

- a. Count One: The convict is sentence to (25) Twenty-five *Years' imprisonment.* - *b. Count Two: The convict is sentenced to (25) Twenty-five Years' imprisonment.* - c. The two sentences shall be served consecutively (one *after the other). The convict has a right of appeal against* the conviction and for sentence.

It is clear from the record that the trial Judge did not apply a $26$ balancing act between the aggravating and mitigating factors. 35 There was clearly more emphasis on the aggravating factors with

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- 5 no reference to what was stated in mitigation. The Judge also appeared not have considered the importance of the consistency principle which enjoins sentencing courts to consider previous sentences as a guide. Had he done so, and in view of the mitigating factors on record, he would not have arrived at an aggregate sentence of 50 years' imprisonment which we find excessive in the circumstances. We thus set is aside, and exercising our powers under Section 11 of the Judicature Act, proceed to impose an appropriate sentence that suits the facts of this case. 10 - 271 We take into consideration what was submitted as aggravating and mitigating factors. In addition, subject to Paragraph 6 (c) of the Sentencing Guidelines, we appreciate the importance of the principle of consistency. We therefore refer to similarly placed cases previously decided by this Court and the Supreme Court. See Kajugu Emmanuel vs Uganda CA Criminal Appeal No. 625 of 2014. 15 20 - 281 In Bwarenga Adonai vs Uganda, SC Criminal Appeal No.276 of 2OO9, the Appellant murdered two people one of whom was his wife and was sentenced to death by the High Court. On appeal to this Court, the sentence was reduced to 30 years' imprisonment and on appea-l to the Supreme Court, the 3O year's sentence was upheld. In Okecha Mugumba & 3 others vs Uganda, CACA No. O183 of 2OO9, the appellant was convicted of two counts of murder and sentenced to 20 years' imprisonment on each count to run concurrently. On appeal to this court, the sentence was upheld. Finally, in Ading Andrew vs Uganda, CA Criminal

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- 5 Appeal No. 769 of 2OL2, the Appellant was charged with two counts of murder and was sentenced to death. On appeal to this Court, he was sentenced to 27 yeats' imprisonment after the period spent on remand was deducted. - 2911 The above notwithstanding we find no error in the finding of the Court that the Appellant, showed no respect for human life and as such, did not deserve the liberty of ordinar5r people because he is a danger to society. It was a correct observation for the circumstances were grave. With no provocation, the Appellant killed his wife and step daughter. He took the lives of two individuals that he should have cared for and protected. 15 10 - 291 Finally, in arriving at an appropriate sentence, we choose to be guided by Section 2 of the TIA which mandates us to give a separate sentence for each distinct offence. Taking cognizance of previous sentences and other matters mentioned above, we sentence the Appellant as follows: - The Appellant is sentenced to 22 years' imprisonment on Count One. I - 11. The Appellant is sentenced to 22 years' imprisonment on Count TWo. - We are enjoined by Article 23(8f of the Constitution to take into account the period of two years, three months and one day spent on remand, and sentence the Appellant as follows; i)

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The Appellant shall serve a sentence of 19 years, eight months and one day imprisonment on Count One. I

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- 5 ii. The Appellant shall serve a sentence of 19 years, eight months and one day imprisonment on Count T\ro. - ii) The sentences shall run consecutively and shall be served from the date of conviction which is 1Stt October , 2Ol7 . - iii) This appeal therefore succeeds.

10Dated at Mbarara this . day of W,,l . . ,2024

HON. EVA WATA JUSTI OF APPEAL

V HON. I(rEtxA

JUSTICE O APPEAL

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HON. ENYI JUSTICE OF APPEAL