Tumuramye aka Kyakabale and Another v Uganda (Criminal Appeal No. 415 of 2015) [2022] UGCA 68 (3 March 2022)

Full Case Text

#### 5 THE REPUBLIC OF UGANDA

# IN THE COURT OF APPEAL OF UGANDA AT MBARARA

# CRIMINAL APPEAL NO. O4I5 OF 2OI5

(Coram: Egonda-Ntende, Bamugemereire & Madrama, JJA)

# 1. TUMURAMYE HENRY aka I\$AKABALE)

2. MUHUMUZA MTLToN) .............. APPELLANTS

# vs

### UGANDA} RESPONDENT

(Appeat from the decision of the High Court of lJganda Holden at Mbarara in Criminal Session Case No 088 of 20ll before Bashaija J delivered on 2?d January 2015)

### JUDGMENT OF COURT

The Appettants were indicted for the offence of Murder contrary to section 188 and 189 of the Penat Code Act, Cap. 120 laws of Uganda.

20 The facts are that the Appellants,sn 13th December 2010 at Rwanyangwe village in Kiruhura District murdered Simpo Gertrida. The deceased had gone to co[[ect firewood in a nearby forest when she was murdered by the Appellants. The deceased's body was found tying dead in the forest. The Appellants were subsequently arrested and examined and found to be of sound mind.

zs The Appeltants were tried and convicted as indicted and sentenced to 46 years' imprisonment.

Being dissatisfied with the decision of the High Court, the Appetlants appealed against sentence only on the foltowing grounds;

1. The Learned TriaI Judge erred in [aw and fact when he sentenced 30 the appettants to 46 years'imprisonment, a punishment which was manifestty harsh and excessive in the circumstances upon the appe[[ant.

5 2. The Learned Triat Judge erred in law and fact when he sentenced the appellant to 46 years' imprisonment and faited to take into account the time the appettant had spent on remand and hence sentence being ittegat.

The Appeltants prayed that the appeaI is atlowed and the sentence set aside and substituted with a lesser sentence. 10

At the hearing of the appeal, the appettant was represented by learned counseI Mr. Andrew Byamukama on state brief white the respondent was represented by learned counsel Ms Mbaine Eunice; Resident State Attorney. Both counsel addressed court by way of written submissions filed on court record and judgment was reserved on notice.

# Submissions of the appetlant's counsel

## Ground I of the appeat:

The appellant's counsel submitted that it is trite law that the court wiI only interfere with the sentence of the triaI court if the sentence is ittegat or is based on a wrong principle or the court has overtooked a material factor or where the sentence is manifestly excessive or so low as to amount to a miscarriage of justice (see Livingstone Kakooza vs Uganda; Supreme Court Criminal Appeat No 17 of 1993). Secondty, counsel retied on Kizito Senkula vs Uganda; SCCA No 24 of 2001 for the proposition that sentences imposed in previous cases, though not precedents, afford material for consideration when sentencing convicts. Thirdty, there are 20 25

- numerous authorities where sentences for murder have been greatty reduced and substituted with lesser terms of imprisonment. The appellants counseI relied on Turyahika Joseph vs Uganda; Criminal - Appeat No 321 of 2014 where the Court of Appeal noted that the sentences in murder cases range from 20 to 30 years and where appropriate except where for exceptional circumstances, higher or lesser sentences have been imposed. ln the above appeat, death had been caused by running over the deceased using a grader after the 30 - deceased refused to engage in a sexual affair with the appetlant. The court imposed a sentence of 26 years' imprisonment notwithstanding the gruesome nature of the offence. 35

- 5 Coming to the facts of the appellants' appeal, the appeltant's counsel submitted that the deceased was also murdered in a gruesome manner by strangutation. He argued that to maintain consistency in sentences, a sentence of 46 years' imprisonment shoutd be substituted with lesser terms of imprisonment as 46 years was manifestty harsh and excessive. - Ground 2 of the appea[. 10

The appel[ant's counsel submitted that in sentencing the appellants, the learned trialjudge never complied with the provisions of articte 23 (8) of the Constitution which requires the period a convict has spent on pretrial detention to be taken into account in imposing a fixed term of imprisonment. Counsel relied on Rwabugande Moses vs Uganda; SCCA No 25 of 2014 for the proposition that failure to take into account the period of pre-triaI detention in imposing sentence for a fixed term of imprisonment renders the sentence ittegat. He submitted that the appellant spent 4 years on remand which were ignored by the sentencing judge. ln the circumstances, the sentence was ittegat.

### Submissions of the respondent's counsel in repty.

### Ground 1

!n repty to ground l, the respondent's counsel submitted that the appellants were seen in the forest with a panga (cuttass) hotding the deceased to the ground. The deceased never returned home until when her rotting body was discovered in the forest after many days of search. The head was found detached from other parts of the body and it was established that it had been cut off using a cutlass. The respondent's counsel relied on Tigo Stephen v Uganda; Criminat Appeat No 08 of 2009 25

for the hotding that the most severe sentences known to the penal system is the death penatty fotlowed by imprisonment for life and thirdty imprisonment for a term of years. He contended that in exercising his jurisdiction, the learned trial judge sentenced the appe[[ants to a term of years which is not comparabte to a sentence of death or tife imprisonment. Counsel agreed with the principles apptied by courts in sentencing submitted by the appettant's counset and submitted that the learned triat judge considered the aggravating and mitigating factors 30 35

white sentencing the appettants. He submitted that in the circumstances,

5 a sentence of 46 years'imprisonment is a lenient sentence because the learned the trialjudge did not impose the maximum penalty of death as prescribed by the taw.

Counsel further invited the court to consider the reasons given by the triatjudge which justified the imposition of 46 years' imprisonment. This included the fact that offence was the worst of the worst and was committed in a barbaric and most heinous manner. lt was revotting to society and deserved to be punished severety. 0n the other hand, the deceased was an innocent girt aged 16 years who was motested to her death and her body teft in the bush to rot. Further counsel retied on Bukenya Stephen v Uganda; Court of Appea[ Criminat Appeat No 051 of 2007 where a sentence of life imprisonment was confirmed and the Court of Appeal hetd that it was not excessive. Further in Rwabugande Moses vs Uganda; Supreme Court Criminal Appeat No 25 of 2014, a sentence of 35 years imposed by the triat judge was found not to be itlegat, or excessive considering that the maximum penatty for the offence of murder is death. The court uphetd the sentence. 10 15 20

!n the premises the respondent's counsel submitted that the sentence of 46 years' imprisonment is not harsh or manifestly excessive and it did not occasion a miscarriage of justice when taking into account the nature of the offence and the circumstances under which it was committed.

# Ground 2 of the appeal

ln reply to ground 2 of the appeal, the respondent's counset submitted that the learned trial judge took into consideration the period the appeltant had spent in pre-trial detention before his conviction and sentence. The statement of the learned triat judge that: " I have taken into consideration the period the 2 have spent on remand complies with article 23 (8) of the Constitution. With reference to the cases of Kizito Senkula vs Uganda SCCA No 24 of 2001; Kabuye Senveno v Uganda No.2 of 2002; Bukenya Joseph vs Uganda SCCA No 17 of 2010, it was hetd that the words in articte 23 (8) of the Constitution 'to take into account'does not require a triaI court to appty a mathematicat formula by deducting the exact number of years spent on remand prior to conviction and sentence. Further counse[ submitted that the decision of the Supreme 30 35

5 Court in Rwabugande Moses (supra) cannot be said to have retrospective effect because the decision of the triaI judge was delivered on 22"d ot January 2015 but the decision of the Supreme Court is dated 3'd of March 2017 (a much later date). Further in Abelle Asuman vs Uganda; SCCA No 66 of 2016 which was decided on 19th of Aprit 2018, it was hetd that where the court has ctearty demonstrated that it has taken into account the period spent on remand to the credit of the convict, the sentence cannot be interfered with by the appe[late court on the ground that the judge or justices used different words in the judgment. 10

ln the premises, counseI submitted that the ]earned triaI judge considered the period the appeltant spent on remand before triaI and sentencing them accordingly under the provisions of the [aw. He prayed that we find that the appea[ [acks merit and dismiss the appeal accordingly. 15

#### Resolution of appeal

- We have carefutly considered the appe[[ant's appeaI which is against sentence onty with leave of court under section 132 (1) (b) of the TriaI on lndictments Act, cap 23 laws of Uganda. An appeltate court may interfere with a sentence imposed by the triat court if it was arrived at on the basis of a wrong principte or where the court misdirected itself or overtooked 20 - a material factor or where the sentence is manifestly excessive or so low as to amount to an injustice. ln an appeaI against sentence, the East African Court of Appeat in Ogato s/o Owoura v R 0954) 21 EACA hetd that: 25

The principtes upon which an appeltate court wit[ act in exercising its jurisdiction to review sentences are firmly estabtished. The Court does not alter a sentence on the mere ground that if the members of the court had been trying the Appettant they might have passed a somewhat different sentence and it woutd not ordinarity interfere with the discretion exercised by a triaI Judge untess as was said in James y. r?, (1950) l8 EACA 147, 'it is evident that the Judge has acted upon wrong principle or overlooked some material factor". To this we woutd atso add a third criterion, namely, that the sentence is manifestty excessive in view of the circumstances of the case...

We will start with the 2nd ground of appeal which is on a point of law that:

The learned triaI judge erred in law and fact when he sentenced the appettant to 46 years'imprisonment and faited to take into account

s the time the appellant had spent on remand and hence sentence being ittegat.

The question of whether the learned triat judge took into account the period the appetlants spent in lawful detention prior to his conviction and sentence is a question of fact that has to be considered from the record 10 and atso a question of how it was demonstrated in the judgment. The question of law is obvious and is not in dispute that where a triaI judge does not take into account the period the appetlants spent in pre-triaI detention in imposing a fixed term of imprisonment, such a sentence is ittegat as it contravenes article 23 (8) of the Constitution of the Repubtic 1s of Uganda. The words used by the learned the triaI judge are as fotlows:

I have taken into consideration the period the two have spent on remand.

Prior to the above sentencing notes, Ms Karungi Loy, Senior State Attorney addressed the court and stated that the convicts had been on remand tor 4 years. Simitarty, Mr Twinomatsiko Enock the Counsel on 20 state brief who represented the accused stated that the accused had been on remand for 4 years. The decision of the triat judge in sentencing is dated 22 January 2015.

Articte 23 (8) of the Constitution of the Repubtic of Uganda provides that:

(8) Where a person is convicted and sentenced to a term of imprisonment for zs an offence, any period he or she spends in lawful custody in respect of the offence before the comptetion of his or her trial sha[[ be taken into account in imposing the term of imprisonment.

The respondent's counsel advanced an interesting argument that the decision of the Supreme Court in Rwabugande Moses vs Uganda (supra) 30 could not have been binding on the learned triat judge whose decision came earlier. The decision in Rwabugande Moses (supra) was meant to provide guidance on application of article 23 (8) of the Constitution and gives directions on how to appty it. lt did not amend or change article 23 (8) which came into force on 8th 0ctober 1995 and which it sought to 3s enforce. So the question of fact is whether the learned triat judge took into account the period the convict spent in [awful custody in respect of the offence before the completion of his or her trial.

# 5 ln Rwabugande Moses v Uganda:l20l7l UGSC 8 the Supreme Court inter afb held that:

It is our view that the taking into account of the period spent on remand by a court is necessarily arithmeticat. This is because the period is known with certainty and precision; consideration of the remand period should therefore necessarily mean reducing or subtracting that period from the final sentence. That period spent in lawful custody prior to the trial must be specificatty credited to an accused.

This decision was revisited in Abetle Asuman v Uganda; [20181 UGSC 10, where the Supreme Court held that there ought to be a demonstration by the triat court that the period the appettants spent in lawful custody was taken into account:

Where a sentencing Court has clearty demonstrated that it has taken into account the period spent on remand to the credit of the convict, the sentence woutd not be interfered with by the appellate Court onty because the sentencing Judge or justices used different words in the Judgement or missed to state that they deducted the period spent on remand. These may be issues of style for which a lower Court woutd not be faulted when in effect the Court has comptied with the constitutional obligation in Article 23 (8) of the Constitution.

- It is therefore important to demonstrate that the period spent on pretrial remand had been taken into account to the credit of the convict. lt is not apparent how this period of 4 years' imprisonment was taken into account to the credit of the appellants though the learned triaI judge stated that he had taken it into consideration. Granted the submissions 25 - of the learned Senior State Attorney and counsel for the convict on state brief included an address on the period the appetlants had spent in pretriaI detention. Read in context, the decision fotlowed the submissions of counsel and apparentty were recorded by the judge. The record shows that the proceedings are dated 22"d of January 2015 under the hand of the 30 - judge. Further it is headed sentencing hearing. This was after judgment had been delivered on the same day. However, the sentencing decision itsetf does not refer to the period the appellants spent in pre-triat lawful custody at all. 35

The record demonstrates that the appeltants were in police custody by 22nd of December 2010 and the statement of offence in the charge sheet 40

5 shows that the offence took ptace on 13th December 2010. By 22nd ot December 2010, the appettants had been examined by a medical officer. This suggests that they were atready in potice custody. There is no evidence that they coutd have been arrested earlier than 22nd December 2010. The decision of the learned triaI judge is dated 22 January 2015. The t

appe[[ant had spent approximatety 4 years and one month in pre-trial detention. 10

!n the premises, we give the appetlants the benefit of doubt because the learned triatjudge did not demonstrate in any way that he had taken into account the actuat period the appetlant had spent in [awfu[ custody prior

to their conviction and sentence. We atlow the appeaI against sentence and set aside the sentence for contravention of articte 23 (8) of the Constitution of the Repubtic of Uganda. 15

Having set aside the sentence, there is no need to consider ground one of the appea[. Exercising the powers of this court under section 1l of the Judicature Act cap 13 laws of Uganda, we would sentence the appellants

afresh.

We have considered the aggravating factors as wetl as the mitigating factors in the sentencing notes of the learned triat judge which were as foItows:

'The convicts are presumed to be first offenders with no previous record of conviction. 25

> The offence is the worst of the worst and was committed in a barbaric most heinous manner. The two strong abte-bodied men descended on a helpless young girt of 16 years and motested her to death and left her body to rot in the bushes. These are acts that are revotting to society and deserve to be punished severety.

> The convicts do not show any remorse at att. They are more concerned with there being reteased on short sentence. That shows that a lenient sentence shoutd not reform them; and if they are released they would pose a danger to society again.

! have taken into consideration the period the two have spent on remand.

There is need to protect the society against woutd-be murderers by keeping convicts away for a longer period.

s We have carefutty considered the words of the learned triat judge especia[ly the fact that he considered the offence to be the worst of the worst. Ordinarity, the death penalty is reserved for the worst of the worst for persons found guitty of murder. According to the decision of the Supreme Court in Oketto Godfreyv Uganda; SCCA No.34 ot2014 in terms 10 of severity, the tife imprisonment ranks next in severity to the death

penalty:

ln terms of severity of punishment in our penal [aws, a sentence of life imprisonment comes next to the death sentence which is stitt enforceable under our penal [aws.

1s Secondty, in Tigo Stephen v Uganda; Criminat Appeat No 08 of 2009 [20lll UGSC 7 (10tt' M.y, 20ll) the Supreme Court took note of the absurdity of specific terms of imprisonment of over 20 years taken to be more severe than tife imprisonment. They said:

We note that in many cases in Uganda, courts have imposed specific terms of 20 imprisonment beyond twenty years instead of imposing tife imprisonment. lt would be absurd if these terms of imprisonment were hetd to be more severe than tife imprisonment.

The issue with tife imprisonment sentences is that it ends up being less than 16 years' imprisonment after factoring in remission if earned. The 2s offence was committed before the coming into force of the Law Revision (Penatties in Criminal Matters) Miscellaneous (Amendments) Act, 2019 which streamtines the problems with sentencing and allows fixed terms of imprisonment of up to 50 years. We cannot appty this law retrospectivety. We agree with the [earned triatjudge that the appetlants 30 deserve a deterrent sentence notwithstanding the fact that they are considered convicts without a previous record of conviction for any offence and atso were relatively young. This was an age of 29 years for Tumuramye Henry alias Kyakabate and 25 years for Muhumuza Mitton respectivety at the time of commission of the offence. There is judiciat 3s precedence imposing imprisonment for periods of over 25 years by this court.

!n Bahabwa Gadi v Uganda; Court of Appeal Criminat Appeat No 526 of 2014, we found that a sentence of 30 years' imprisonment was appropriate in the circumstances. The appellant was onty 26 years old at

- the time of commission of the offence involving the ritual murder of a boy $\mathsf{S}$ of 13 years who was beheaded. Similarly, we would find that a sentence of 30 years' imprisonment is appropriate in the circumstances of this case. From that sentence we would take into account the period of 4 years and one month that the appellants spent in lawful custody before their conviction on 22nd of January 2015. We sentence each of the $10$ - appellants to a term of 25 years and 11 months' imprisonment which term commences from 22nd January 2015.

Dated at Mbarara the $3^d$ day of March 2022 manni Fredrick Egonda - Ntende **Justice of Appeal Catherine Bamugemereire Justice of Appeal** Christopher Madrama

**Justice of Appeal**

$20$