Uganda v Nsekanabo (Criminal Session 133 of 2020) [2024] UGHC 283 (12 February 2024)

### THE REPUBLIC OF UGANDA

# IN THE HIGH COURT OF UGANDA AT MUKONO

# **CRIMINAL SESSION CASE NO. 0133 OF 2020**

# [CRB NO.672 OF 2019]

# UGANDA:::::::::::::::::::::::::::::::::::

#### **VERSUS**

# NSEKANABO ALI::::::::::::::::::::::::::::::::::::

### **BEFORE HON. LADY CHRISTINE KAAHWA**

#### **SENTENCE AND REASONS FOR SENTENCE**

This matter came up for Plea taking on the 17<sup>th</sup> January 2024 and the Accused person pleaded guilty to the offence of Murder contrary to Section188 and 189 of the Constitution. He relayed his sincere apologies to the family of the deceased. He stated that he was a first time offender and was only 20 years at the commission of the offence and that he had not wasted Court's time.

When Prosecution read over the summary of the case he contested the fact that his gun was cocked and did not say that the words attributed to him "keep quiet or I shoot". He also said that the deceased slapped him and the Accused was therefore provoked severally. He also contested the fact that the deceased had died instantly. He stated that the colleagues of the deceased came out with iron bars to attack him and that he had handed over himself to the police.

The Court entered a Plea of not guilty and the matter was adjourned to the 30<sup>th</sup> January 2024 for hearing. The Court guided the parties to explore a Plea Bargain.

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The Prosecution was represented by Mr. George Bigira, Senior State Attorney and Ms. Siratwa Basajjabalaba State Attorney while the defence was represented by Mr. Mujuni Januario from the onset of the proceedings.

On the 30<sup>th</sup> of January 2024 Defence Counsel reported that the Plea Bargain had failed because the sentence that was proposed by the defence was low and the prosecution did not agree with it. The Prosecution confirmed the said position and proposed that the indictment be read over to the Accused person again.

The indictment was read over to the Accused and the Accused person stated that he continues to plead guilty to the state and Court and the Court should determine the sentence itself.

Prosecution read the facts over to the Accused and he accepted the facts as true and the Court entered a plea of quilty. He was thereafter convicted of Murder contrary to sections 188 and 189 of the Penal Code Act.

In allocutus the prosecution submitted that the Convict was on duty and that with his position of work as a security guard it was incumbent on him to know his job and equipment would cause harm to a person once it is not used precautiously. The body part where the bullet hit the deceased was the chest and the left arm where the vital organ of the heart is located. That if the matter was merely a security issue the convict should have aimed at the legs but not the left arm.

In mitigation the defence counsel submitted that at the time of commission of the offence the convict was a young man and he was therefore prone to making mistakes. That further the shooting was done because the convict was provoked by the deceased who refused to obey lawful orders of the security guard. The defence also stated that the Accused was a young man and if given a less sentence he would be released as a transformed man. He stated that the accused had apologized to the family of the deceased and therefore he deserves a lenient sentence.

Fatural about

The Accused in allocutus stated that he regrets causing the death of Ojulu David and that he is now reformed and prayed for a sentence of 10 years. He stated that he was provoked because the deceased had slapped him.

While imposing sentence on a convict, the following factors have to be put into consideration. Suffice to note that the maximum punishment for murder under the Penal Code Act is death. Following the provisions of the Constitution (Sentencing Guidelines for Courts of Judicature) (Practice) Directions, 2013 and particularly Paragraph17, the Court may pass a sentence of death in exceptional circumstances that being in the "rarest of the rare" cases. The Supreme Court in the case of Aharikundira v Uganda (Criminal Appeal No. of 2015) [2018] UGSC 49 (3 December 2018) made reference to the case of AG v. Susan Kigula & 417 Ors, **Constitutional Appeal No. 3 of 2006,** where it was held that death sentence is no longer mandatory and should be imposed only in the rarest of the rare cases.

Paragraph 18 of the sentencing guidelines spells out what amounts to the "rarest of the rare" cases and they include cases where—

- a. the Court is satisfied that the commission of the offence was planned or meticulously premeditated and executed; - b. the victim was-- (i) a law enforcement officer or a Public Officer killed during the performance of his or her functions; or (ii) a person who has given or was likely to give material evidence in Court proceedings; - c. the death of the victim was caused by the offender while committing attempting commit--Murder: or to $(i)$ $(ii)$ Rape: $(iii)$ Defilement; (iv) Robbery; (v) Kidnapping with intent to Murder; (vi) Terrorism; or (vii) Treason; - d. the commission of the offence was caused by a person or group of persons acting in the execution or furtherance of a common purpose or conspiracy;

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- e. the victim was killed in order to unlawfully remove any body part of the victim or as a result of the unlawful removal of a body part of the victim; or - f. the victim was killed in the act of human sacrifice.

I have found no extremely grave circumstances that would justify the imposition of a death penalty. Under The Constitution (Sentencing Guidelines for Courts of Judicature) (Practice) Directions, 2013, the sentencing starting point for murder is 35 years and the sentencing range is from 30 years' imprisonment up to death sentence, Paragraph19 provides for the sentencing ranges in capital offences:

The Court shall be guided by the sentencing range specified in Part I of the Third Schedule in determining the appropriate custodial sentence in a capital offence;

In cases where a sentence of death is prescribed as the Maximum sentence for an offence, the Court shall, consider the factors in paragraphs 20 and 21 to determine the sentence in accordance with the sentencing range.

Accordingly, Paragraph 20, provides for the considerations which Courts should bear in mind while imposing a sentence of death and before that is done, the Court is obligated to look at the mitigating factors under Paragraph 21 of the Constitution Sentencing guidelines for Courts of Judicature.

The second gravest punishment is life imprisonment provided for under paragraph 22. While determining whether the circumstances of an offence or offender justify imposing a death sentence or imprisonment for life, Court shall consider the factors aggravating or mitigating a death sentence. Import to mention that the sentencing guidelines should to be applied bearing in mind past precedents of Courts while deciding similarly.

102/02/2024

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This was mentioned in the case Ninsiima v. Uganda Crim. C. A Criminal Appeal No. 180 of 2010).

In this matter therefore I have reviewed the following cases, **Uganda v** Anyao & Anor (Criminal Sessions Case 5 of 2017) [2018] UGHCCRD **120 (17 May 2018)** where the accused was convicted for the murder of a one Rebecca Akumu aged 72 years, in which the Medical Report indicated that the deceased was unable to defend herself, her tongue was missing, the private vaginal parts were removed and the neck indicated signs of strangulation. After considering the aggravating and mitigating factors, the Court imposed a sentence of 26 years' imprisonment. In the case of Zaveria vs Uganda, Criminal Appeal No. 427 of 2014, the Court of **Appeal** substituted a sentence of life imprisonment with a sentence of 17 years for the offence of Murder.

Court further in the case of Hon. Akbar Hussein Godi Vs Uganda, **Criminal Appeal no. 62/2011**, the Court of Appeal upheld a sentence of 25 years' imprisonment against the Appellant who murdered his wife, again in the case of **Odongo Sam Vs Uganda, Criminal Appeal No. 0088** of 2014, the Court of Appeal upheld a sentence of 19 years' imprisonment for the offence of Murder.

In Nkuruzinza Julius versus Uganda the Court of Appeal Criminal **Appeal Number 12 of 2009** the Appellant was convicted on his own plea of quilty and was sentenced to 17 years the Court noted that a plea of quilty was a mitigating factor.

I have taken into account the aggravating circumstances that the convict is a security guard and should have even though provoked aimed at the legs in order to stop the deceased from gaining entry without the due check. The Police Form 48B the post mortem report shows that there were abrasions on the chest and the cause of death was qunshot wounds.

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I have taken into consideration that no other previous conviction has been brought to the attention of the Court. The Accused person did not waste the Court's time and from the onset pleaded guilty to the offence of Murder. The Court is also aware that the age of the convict in Police Form 24 is 20 years of age and therefore was capable of reform. He appeared remorseful and from the onset did not deny causing death but maintained that he was provoked by being slapped by the deceased person.

It is my considered opinion that the death caused was not premeditated and was caused partly by the deceased refusing to be checked at the security point and in the heat of the moment the convict shot the deceased. I will therefore sentence the Accused person to 15 years' imprisonment and the time spent on remand of 4 years and 5 months shall be deducted from the 15 years in accordance with Article 23(8) of the Constitution of the Republic of Uganda, 1995 as amended. He will serve a balance of 10 years and 7 months.

The convict has a right of Appeal against the sentence within a period of fourteen days of reading the sentence.

**Dated** at **Mukono** this....................................

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**Christine Kaahwa JUDGE**