Ugochukwu v Uganda (Criminal Appeal 284 of 2021) [2024] UGCA 67 (26 March 2024)

#### THE REPUBLIC OF UGAITDA

#### IN THE COURT OF APPEAL OF UGANDA AT I(AMPALA

#### CRIMINAL APPEAL NO. 284 OF 2O2L

(Ari.sing from tlrc decision of the High Court of Uganda deliuered on the 15tn of Nouember 2021 by Hon. Ladg Justice Lydia Mugambe at Kampala HCT IOO-ICD-CR-SL No. OO5 of 2015)

#### UGOCHUKWU JOACHIM ONYEAKO : : : : : : : : : : : : : : : : : : : : : : : : : : : : : : : : : APPELLANT

#### VERSUS

UGANDA ::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::: RESPONDENT

CORAM: HON. MR. JUSTICE RICHARD. BUTEERA, DCJ

HON. MR. JUSTICE CHRTSTOPHER GASHIRABAKE, JA

HON. MR. JUSTICE OSCAR JOHN KIHII(A, JA

#### JUDGMENT OF COURT

## Introduction

?

The Appellant was indicted and convicted of the offences of kidnapping with intent to confine a person contraq/ to section 244 of the Penal Code Act and kidnapping with intent to obtain a ransom contrary to section 243 (Il (c) of the Penal Code Act and sentenced to L7 years'imprisonment.

#### Background

On 21st July 2013, Mr. Ross Robert Jamgs, the victim, received an email from ueronica.wild@lem.pl interesting him in an investment opportunity of assisting a one Ms. Ford relocate her family fortune of US20 million from Zimbabwe to Australia. Several communications followed after the 21st July 2OL3 email and the victim exchanged telephone contacts with the author of the first email. Other mails were received from one Michael Oweni, the "attorney" of Ms. Luciana Ford

W Pagel of 2t

via *micheal.oweni@live.com*. After numerous communications, Micheal Oweni, invited the victim to Uganda to seal the deal with Ms. Luciana Ford because Zimbabwe was not safe. The victim made arrangements to travel to Uganda and was assured by the said Attorney that arrangements had been made for his pickup from Entebbe airport to the Sheraton hotel Kampala where the two would briefly meet before meeting with Ms. Luciana Ford, the would be partner. The victim was also informed that reservation for accommodation had been made at the Sheraton Hotel. On 27/08/2013, the victim flew from Kevi Ukraine to Dubai where he connected to Entebbe International Airport Uganda and arrived on $28/08/13$ .

On arrival at Entebbe Airport, the victim was received by Onyedeke David, who was holding a placard with his name 'Ross Robert James' in bold ink. He warmly received the victim, ushered him to a car and informed him that the person in the car was Michael's driver. The victim believed Onyedeke David was talking about Michael Oweni, the attorney. After 20 to 25 minutes' drive, the car turned off the main road and the victim who was a bit alarmed asked where they were heading to. Onyedeke David replied that they were going to see 'Michael'. The victim protested and insisted that he be taken to Sheraton hotel where he would comfortably meet Michael but all his protests were ignored.

The car parked in a homestead in Seguku and the victim was ordered out and ushered into the house with his luggage. In the house, Onyedeke David and the victim were met by the Appellant, Onyaeko Ugochukwu Joachim, and Iyke Sam who commanded the victim to sit down and forget about going to the Sheraton Hotel to meet Michael. Realizing that he was in danger, the victim complied. A file folder was presented before the victim by one Obiora Sunday and on opening it, read that he was held as a hostage and would continue to be held unless his people released 650,000 Euros which had to be transported to Uganda by courier and packed in their luggage. The folder contained photographs of a female aged between 40 to 50 years old, a European who seemed to have been tortured. He was told that was Luciana Ford, the lady from Zimbabwe. Having ensured that

Page 2 of 21<br>Page 2 of 21

the victim had read through and internalized all the contents of the folder, A3 searched the victim for any electronic devises as well as any valuables.

Subsequently, the victim was ordered to note down a list persons and their telephone contacts that he could contact to raise the ransom. He was however cautioned not to let anyone know that he was held hostage but to call and ask for the money under the guise of requiring it for business. After making several calls to relatives and friends with no positive response with regard to raising the 650,000 Euro ransom, the hostage takers reduced the ransom to 10,000 Euros. The 1O,OO0 Euros was raised by the victim's family and friends in Australia. The hostage takers, through email and telephone messages sent details of how to remit the money. The remission was to go through western Union and one Sekiziyivu Paul alias Protocol who was coordinating the Ugandans that were to receive the ransom money through Ugandan Western Union. Among the recipients of this ransom was Ndugga Kalist Sempala. The victim was released after the remission of the money througl.r Western Union. He was dropped at Entebbe Airport where he was found in a state of confusion by officers of the Uganda police.

The Uganda Police had been notified by the Australian Embassy about the developments and they were purposely at Entebbe International Airport looking out for the victim. The victim led the police to the Seguku house where he had been held hostage though no entry into the house was made at that stage. Throughout his stay in the Seguku house, the victim was guarded by the Appellant and A,4 Iyke Sam Agaordi Madu. On 13/08 l2OL3, police received a complaint from the American Embassy that an American cittzen called Robert Braumuller had been kidnapped and the kidnappers were demanding for a ransom of \$50,000 (fifty thousand US dollars). Suspecting that the kidnappers could be the ones who had taken the victim hostage, police raided the Seguku home and indeed found the American being guarded by Iyke Sam Agaordi Madu.

N- Page 3 of <sup>21</sup>


Iyke Sam Agaordi Madu was arrested and led to the arrest of David Onyekede, Obiora Sunday, Onyaeko Ugochukwu Joachim and Ndugga Kalist Sempala. They later led to the arrest of Sekiziyivu Paul alias Protocol who was recruited to receive the ransom money. Investigations revealed that these accused persons, together with the Appellant were the same people who had taken the victims, Ross Robert James and Robert Braumuller hostage. The accused were accordingly charged with the offence of kidnapping with intent to confine person contrary to section 244 of the Penal Code Act and kidnapping with intent to obtain a ransom contrar5r to section 243 (ll (c) of the Penal Code Act. A2, A3 and A4 pleaded guilty to the offences charged and were sentenced accordingly. The Appellant tried to enter a plea bargain which failed hence went to full trial. The Appellant was found guilty of the offences charged and sentenced to 17 years' imprisonment.

Being dissatisfied with the decision of the trial court, the Appellant fiIed an appeal to this court on the following grounds;

1. That the learned trial Judge erred in law and fact when she conducted the tria-l with irregularities with regard to assessors.

I

- 2. That the learned trial Judge erred in law and fact when she did not follow the rules governing plea bargain by a judicial officer. - 3. That the learned trial Judge erred in law and fact when she convicted the appellant basing on insufficient and uncorroborated co-accused testimonies. - 4. That the leaned trial Judge erred in law and fact when she meted out an illegal sentence onto the appellarirt, which is manifestly harsh and excessive given the obtaining circumstances.

#### Representation

When the appeal carne up for hearing, Ms. Wakabala Sylvia appeared for the Appellant while Mr. Richard Birivumbuka, Chief State Attorney, appeared for the Respondent.

P Page 4 of 2L ,{b,?u

# Dutv of a first Appellate Cqurt

We recall that this is a first appellate court and as such, the law enjoins it to review and re-evaluate the evidence as a whole, closely scrutinize it, draw its own inferences, and come to its conclusion on the matter. This duty is laid down in Rule 30(1) (al of the Rules of this Court, thus;

30. Pouter to reappraise euidence and to take additional euidence.

(1) On anA appeal from a decision of the High Court acting in the exercise of its original jurisdiction, the court maA-

(a) reappraise the euidence and dranu inferences of fact; and

(b) in its discretion, for sulficient reason, take additional euidence or direct that additional euidence be taken by the trial court or bg a commissioner.

The cases of Pandya v R [195fl EA 336 and Kifamunte Henry v Uganda SCCA No. 1O of L997 have also succinctly re-stated this duty. We have borne these principles in mind in resolving this appeal.

#### Ground one

## Appellant's submissions

Counsel submitted that the trial began with two assessors and as it proceeded, one assessor did not attend court on some dates. Counsel argued that in case an assessor is absent during trial, the trial should proceed with the remaining assessor. Counsel relied on the decision in Okoa Jimmy alias Baby & 4 ors Vs Uganda C. A. C. A No. 55, 68 and 67 of 2OL6 for the proposition that allowing the assessor to resume participation in the trial is a fundamental irregularity which occasions a miscarriage of justice. Counsel relied on Section 67 of the Trial on Indictments Act which provides for oath of assessors and argued that a trial that proceeds without assessors taking oath is a nullity. Respondent's submissions


In reply, counsel submitted that the assessors were appointed on 02l02l2OL5 and their particulars were duly recorded. That whereas the record does not reflect that the assessors were sworn in, it was merely an omission on the record as the judge would not have taken the particulars and omitted the oath. Counsel argued that the 2rd assessor did not attend court on 2l ll l20 15 but eventually, the Judge did away with her and remained with one assessor in accordance with Section 69 (1) of the Trial on Indictments Act. Counsel submitted that the trial Judge was alive to the role of assessors during a trial and thus, no miscarriage was occasioned to the Appellant

## Consideration of ground <sup>1</sup>

The Appellant's counsel faults the learned trial Judge for having conducted the tria-l in the absence of one of the assessors on certain days. Section 3 of the Trial on Indictments Act underscores tho importance of assessors and provides a mandatory requirement that all criminal trials in the High Court be conducted with at least two assessors. It is without doubt that assessors'participation in a criminal trial is crucial.

Section 67 of the Trial on Indlctments Act provides for oath taking of assessors and provides as follows;

# 667. Oath of assessoa

At the commencement of the trlal and, uthere the protistons o.,f sectlon 66 are appltcable, afier the prelhnlnary hearlng hrr,s been concluded, each cssessor shall ta.ke an oath of tmparttallg to advlse the court tn the best of his or her knowledge, sIciII and abllttg on the lssues pendlng beJore the court. D

The appointment of assessors is to be found at Pages 23 to 24 of the Record and it states as follows;

oCourt: I am proposing the follouing as Assessors,

WL Page 6 of <sup>21</sup> qvrrv

1. Mr. John Kimera

2. Hajjati Mariam Sengooba.

Assessor No.1 Kimera John, aged 30 years, Businessman at Kabojja, resides at Kabojja, Nsangi Sub-county, Wakiso, Diploma and Degree in *Development Studies Mutesa I university and Nsamizi Training Institute.*

Assessor No.2: Hajjati Mariam Sengooba, 55 y CS at Namungoona LC. I, *Kyadondo, Senior six.*

*Court: Do you have any objection?*

**Accused 1**: No objection.

**Accused 2**: No objection.

**Accused 3**: No objection.

**Ms. Kagezi**: No objection.

#### **Defence Counsel:**

1. No objection.

*2. No objection.*

**Court:** The above mentioned persons will be the Assessors in this matter.

**Ms. Kagezi:** We don't have any agreed facts. I will be calling *twelve witnesses. Four of them are outside Uganda i.e. two are in New York and two in Australia. We pray to this court to proceed by video conferencing in respect of the four witnesses.*"

The record does not reflect that the assessors were sworn in. The respondent's counsel however argues that this was an omission in the recording of the proceedings for reasons that the trial Judge could not have recorded the

PAR Page 7 of 21<br>Cham $\mathcal{N}$

assessor's particulars and subjected them to the defenses'objection and forget to take oath.

We are inclined to agree with the submissions of counsel for the respondent. Having taken all the particulars of the assessors, we are of the view that the taking of oath by the assessors was merely an omission on the record. Even if the trial Judge had overlooked the procedure requiring the assessors to take oath, we think that this is not enough to set aside the judgment. We are fortified in our view by Section 139 of the Trial on Indictments Act which provides as follows;

# o739. RerrersabfHlg or q.lteratton oJJlndlng, sentence or ord,er by reason of etor, etc.

7. SubJect to the proulslons of ang urltten laut, no findlng, sentence or ord,er pa.ssed. bg the Htgh Court shall be reuersed or altered on appeal on account of ang error, omission, lnegularlty or mlsdlrectlon ln the sumflNrns, utanant, lndlctment, order, Judgment or other proceedlngs before or durlng the trlal unless the error, omisslon, lrregularltg or mlsdlrectlon has, lnfact, occasloned aJallure of Justlce.

2. In detcnnlnlng whether ang error, omission, ln'egularttg or mlsdlrectlon ha.s occasioned a fallure of fusttce, the court shall ha ue regard to the questlon uthether the obJectlon could and shouLd, haae been ralsed at an earller stage ln the proceedlngs,o

Section 139 of the Trial on Indictments Act, essentially states that for an Appellate Court to reverse or set aside a judgment on account of some omission during the proceedings at the High Court, such omission ought to have resulted in a failure of justice. We are of the view that the Appellant has not made out a case for a failure of justice resulting from failure of the trial Judge to administer oath of the assessors.

@tr B2 Page 8 of <sup>21</sup> Cy

We are alive to the principles governing assessors in criminal trials. We are also alive to the importance of administering substantive justice without undue regard to technicalities. This principle was considered by the Supreme Court in Uganda Vs Guster Nsubuga and Robinhood Byamukama, S. C. C. A No. 92 of 2018 in which the Court of Appeal had quashed the conviction and sentence of the respondents on grounds that the trial Judge erred in convicting the respondents on a.n amended indictment which they never took plea to. Their Lordships held as follows;

6Thls ls one of the cou es uhere substanttve fusttce requlres that the anoma.lg polnted out ln the process of plea taklng be ouerlooked ln fannr of wtder co;use of substantlve fustlce....

Houteuer, lt utould be expectlng too much to demand. that all the trlals must ntn llke clockuork, short of whtch theg uould. result ln nulllff.catlon oJ the entlre trlar. We d.o not lhn ln a perfect utorld. so ure haue to eualuate the lmpact of ang pattlcular lmperfectlon on the entlre trlal-'

Thus, omission from the typed proceedings of the assessors taking oath is not ground to nullify the entire trial. In any case, if indeed the assessors did not take oath, this anomaly ought to have been raised at the earliest opportunity by the Appellant as is provided by Section 139 (2) of the Trial on Indictments Act. The Appellant ought to have raised this objection at the trial.

The Appellant's counsel also argues that one of the assessors did not attend court on certain dates during the hearing. That on 18/812015 at page 110 of the record, the trial Judge recorded only one assessor in the afternoon session. The morning session however indicated both assessors as present and this, according to the respondent's counsel, was a typing error since both assessors were present on that day.

From the evidence on the record, the second assessor, Hajjati Mariam Sengooba, missed court proceedings on a number of occasions and thus, the learned trial

p\_ Lffi,6 Page 9 of 21

Judge did away with her in accordance with Section 69(1) of the Trial on Indictments Act. The trial Judge remained with only one assessor and he is the only one that gave an opinion to court.

We therefore find no reason to fault the learned trial Judge for having proceeded with one assessor, after considering that the second one missed a number of court proceedings. Ground one accordingly fails.

### Ground 2

## Appellant's submissions

Counsel submitted that the Rules governing plea bargain were flawed to the detriment of the appellant. Under Rule 8 sub rule 3 of the Plea Bargain Rules, a judicial officer who participated in a failed plea bargain may not preside over a trial of the same accused person. That the plea bargain proceedings should not form part of the trial record as it prejudices the appellant in that the judicial officer will be easily biased.

### Respondent's submissions

In reply, counsel submitted that there were no plea bargain negotiations in court and that the day the appellant's counsel informed court of the possible plea bargain, the appellant was not in court and the details of the plea bargain were never placed before court. Counsel submitted that plea bargain is not initiated by informing court, but with an appellant approaching the prosecutor for a possible negotiation. In addition, the record of appeal has no record of the plea bargain and the trial Judge played no role in the failed plea bargain.

## Consideration of ground 2

Plea bargain is governed by the Judicature (Plea Bargaln) Rules, 2O16 and Rule 4 defines plea bargain to mean;

cplea bargaln' meanst the process between ant accused. person and. the prosecutl.on, ln uthlch the accused person agrees to plead gulltg

B M

Page 10 of 21

dY ln exchange for qn agreement bg the prosectttor to drop one or more charges, reduce a charge to a less sertozs offense, or recommend, a partlcrlar sentence subJect to approual bg courtlD

Rule 8 provides as follows;

n8. Court parttcipation in plea bargain.

(7) The court mag parttctpate ln plea bargain discussions.

(2) The parttes shall lnform court of the ongolng plea bargaln negotlatlons and, sho,ll consult the court on lts recofiuttendatlons wtth regard, to posslble sentence before the agreemcnt ls brought to court Jor approaal and recordlng.

(3) SubJect to sub tttle (7), aJudlclal officer uho has parttctpated, ln a failed plea bargaln negotlatlon mag not preslde oaer a trial ln relatlon to the sa;me ca.se.'

Rule 8 (3) above provides that a judicial officer that participated in a failed plea bargain may not preside over a trial. In the present case however, the plea bargain agreement was never placed before court and as such, it would be erroneous for this court to find that the trial Judge participated in the failed plea bargain. The issue of plea bargain was introduced to court on page 48 to 49 of the record and it states as follows'

#### "26.3,2O 75

For State: Racheal Bikhole.

For Defence- Jane Amooti.

Accused uas in court house but not brought because of typhoid.

Kagoro Sergeant Upper Prison Luzira.

Court Clerk Oliuia -lfassuna.

Legal Researcher Phillipa Bogere.

Page 11 of 21 ffiNt P\_ d{.

Ms, Amootl: Mg Lord the acansed person is urulell. He suffers from typhoid and malaia. He is requesting for ample time to recouer and proceed utith matter. He has still expressed interest in a Plea Bargain Agreement. He requests the Prosecution to delete some facts e.g Arrest information but I intend to file a Motion on 2nd Apil2015 on expunging uarrant of arrest and paragraph contents on South Africa.

Assessors: Hajjati Mariam Sengooba and Kimera John present.

Ms. Bikhole: Preuiousty A1 had" shown that a plea bargain be struck but it failed. Matter is for hearing. We haue tuo uitnesses ln cottrt."

From the above excerpt, it is clear that the trial Judge did not take part in the plea bargain and as such, Rule 8(3) of the Judicature (Plea Bargain) Rules, 2016 is inapplicable to this case. We are thus unable to fault the learned trial Judge for participation in the trial process after a failed plea bargain.

Ground 2 accordingly rails.

#### Ground 3

### Appellant's submissions

Counsel submitted that the learned trial Judge believed evidence of the appellant's co-accused persons yet the sarne was contradictory. That the evidence of PW3, PW4 and PWS had contradictions especially in regard to how they each met the appellant. Counsel argued that the Appellant did not participate in the alleged crimes and neither did he participate in financing, planning or masterminding the commission of the alleged offences. Counsel relied on the decision in Wasswa and others Vs Uganda SCCA No. 311 of 1991 regarding the weight attached to contradictions and inconsistencies.


#### Respondent's submissions.

Counsel submitted that the testimonies of the co-accused PW3, PW4, PWS and PW14 were sufficient and corroborative enough to warrant the appellant's conviction. That the said co-accused knew the appellant very well and ably placed him at the scene of crime to the s€une degree they did to themselves. That PW3 testified that he was instructed to rent a house in Seguku by the appellant and also to pick both victims from Entebbe International Airport. Counsel argued that there were no contradictions in the evidence of the appellant's co-accused. Their evidence was cogent and credible and did not require any form of corroboration. Counsel argued the the learned trial Judge warned herself of the dangers of relying on evidence of co-accused persons and relied on other corroborative evidence from PW7 and PW19.

## Consideration of ground 3

Ground 3 faults the learned trial Judge for having found that the Appellant participated in the commission of the offences basing on the testimony of his cOaccused.

The learned trial Judge relied on the evidence of PW2 and PW3, the victims of the offences to corroborate the evidence of the co-accused. PW2 identified the appellant as one of the people that kidnapped him and asked for a ransom of 100,000 Euros but later reduced it to 50,0O0 Euros to be paid through western union. PW19. Robert Ross also testified that he paid a ransom to the appellant which was received through Shumuk Forex Bureau and the transaction was confirmed by PW10, a cashier with Shumuk Forex Bureau.

PW3 gave a detailed statement of how the'victims were kidnapped and taken to the house in Seguku which had been rented by the appellant. The testimony of PW3 was that even the car that was used to pick the victims and take them to Seguku was rented by the appellant.

Page 13 of 21 M dY

PW19, Ross James, testified that the appellant was in the company of others that confined him at the Seguku house and asked for a ransom. The victims PW19 and PW2 were being invited by Michael Owen. He was sending emails to the victims as well as their relatives asking for the ransom. The evidence of the victims, PW2 and PW19, was corroborated by that of PWIS, Kalntzeeyl B,6ez, o. police officer with Counter Terrorism, who testified that the Appellant was calling himself Michael Owen and according to the investigations, Michael Owen was found to be the Appellant.

PWs, Iyke Sam, was found guarding the victims and he told court that he was doing work for his bosses and among his bosses was the Appellant. PW4, Obiora Sunday was found in possession of Braumuller's items when he was arrested on Entebbe Road, These were a laptop and credit cards. PW4 stated that the Appellant was also his boss and he was going to meet him at the time he was arrested. The evidence of PW2, Robert Braumuller, PW3, PW4, PWs, PW14, PW15, and PW19 was sufficient to prove the offence of kidnap against the appellant.

In addition was also the evidence of the Appellant's co-accused persons who pleaded guilty and gave a detailed series of events that led to the kidnap of the victims. PW3, PW4 and PWS testified that the Appellant was their boss and that he participated in the commission of the offence and was the overall planner of the whole deal. PW3 led police to the hotel where the Appellant was shortly after the telephone communication between PW3 and the Appellant.

It is therefore our considered view that the Appellant was placed at the scene of crime and we find no reason to fault the finding of the learned trial Judge basing on the evidence she did which we have re-eva-luated above.

#### Ground 4

Appellant's submissions

P Page 14 of <sup>21</sup> CWw dr

Counsel submitted that the learned trial Judge did not take into account the period the appellant spent on remand contrary to Article 23(8) of the Constitution. Counsel submitted that the sentence was illegal to that extent and in addition, the mitigating factors were not considered and thus court passed a harsh and excessive sentence.

#### Respondent's submissions

Counsel submitted that the appellant was sentenced to L7 years on two counts to run concurrently for an offence for which the maximum sentence is 1O years. Counsel conceded that the sentence passed by the trial court is illegal for failure to arithmetically deduct the period spent on remand and prayed that court exercises its powers to re-sentence the appellant.

#### Consideration of Ground 4

For this Court, as a first appellate court, to interfere with the sentence of a tria-l Court it must be shown that any one or more of the factors below exist:

- 1. The sentence is illegal. - 2. The sentence is harsh or manifestly excessive - 3. There has been failure to exercise discretion - 4. There was failure to take into account a material factor. - 5. An error in principle was made.

See: Rutabugande Moses Vs Uganda, Supreme Court Criminal Appeal No. 25 of 2074; Kgaltmpa Eduard. Vs Uganda" Supreme Court Criminal Appeal No. 70 of 7995; Kamga Johnson Waaamuno Vs Uganda" Supreme Court Crimlnal Appeal No. 76 of 2OOO; and Kiutalabge Bernad. Vs Uganda, Supreme Court Crimlnal Appeal No, 743 of 2OO1.

D Page 15 of <sup>21</sup> tu

Further, the court may not interfere with.the sentence imposed by a trial Court simply because it would have imposed a different sentence had it been the trial Court. See: Ogcrlo S/O Outoura Vs Republtc [7954] 24 EA CA 27O.

It is the appellant's claim that the sentence is illegal on account of the failure of the trial Judge to arithmetically deduct the remand period in accordance with the Supreme Court decision in Rwabugande Moses Vs Uganda (op cit) and Article 23 (8) of the Constitution of the Republic of Uganda. The respondent conceded to this ground.

While sentencing the appellant, the trial Judge stated:

"The Court has taken into consideration both the submissions of the State and Alloantus of the Conuict in the mitigation of their sentence, more so that the Conuict isTtrsl time olfender and there is no euidence of the antecedents of the Conuict in Nairobi Kenya, Canada and South Africa as alleged bA Proseantion. I make no Directiue to Orders to refund of money at the Conuict's Bank Account with Eco Bank; I make Order to refund of Suspect's propertg as outlined and prayed for in the Final Defense's Written Submissions. Conuict shall serue 17 years in prisoion all Counts concurrently, and. Period. on Remand to be considered. The Conuict shall be deported afier seruing Sentence. I so Order." ,

Article 23 (81 of the Constitution of the Republic of Uganda, 1995 requires the sentencing court to consider the remand period in the following terms:

"W|tere a person is conuicted and sent4tnced to a term of imprisonment for an offence, anA peiod he or she spends in lauful custodg in respect of the offence before tlrc completion of his or her tial shall be taken into account in imposinq the term ofimprigonment." [Emphasis added]

The above underlined words are, in our view, the operative words when resolving the issue of illegality of sentence raised in the appeal. In the Rwabugattde ca,se,

Page 16 of <sup>21</sup> W fu,lY

the expression "take into account" tt:e remand period was interpreted by the Supreme Court to involve arithmetical deduction thus:

"It is our uieut that the taking into account of the peiod spent on remand bg a court is necessarily aithmetical. Iftis is because the period is knownuith certaintg and precision; consideration of the remand period should tlrcrefore necessarily mean reducing or subtracting that period from tlrc final sentence. That period spent in lawful custody pior to the tial must be specifically credited to an accltsed."

Subsequently the Supreme Court clarified the meaning of the expression "take into account" in the case of Abelle Asuman Vs Uganda, Supreme Court Criminal Appeal No.66 of 2OL6 (delivered on 19th April 2018) thus:

"What is material in [the Rwabugande] decision is that the peiod spent in lautful custodg pior to the trial and sentencing of a conuict must be taken into account and according to the case of Rwabugand.e that remand period should be credited to a conuict uhen he is sentenced to a term of impri.sonment. This Court used the utords to deduct and in an arithmetical waA as a guide for the sentencing Courts but those metaphors are not deriued from the Constitution.

Where a sentencing Court has clearlA demonstrated that it has taken into account the period soent on remand the credit of the conuict, the sentence uould not be interfered with bu t appellate Court onlu because the sentencing Judge or Justices used different words in their judgment or missed to state that theA deducted tlrc peiod spent on remand. These mag be r^ssues of style for which a louer Court utould not be faulted wlrcn in effect the Court has complied with the Constitutional obligation in Article 23(8) of the Constitution." [Emphasis added]

From the above, it is clear that the guiding question in the resolution of this ground is whether, from the style used by the trial Court, it clearly demonstrated that it has taken into account the period spent by the appellant on remand to

trM

Page 17 of 2L

M

his credit. In our view, the period the appellant spent on remand was not considered in the sentencing order of the learned trial Judge. In the premises, we are satisfied that the trial court did not clearly demonstrate that in sentencing the appellant to the 17 years'imprisonment term, it did take into account the period he spent on remand.

,

In addition, the Appellant was sentenced to 17 years' imprisonment for an offence which carries a maximum sentence of 10 years' imprisonment. The Appellant was charged and convicted of the offences of kidnapping with intent to confine person contrary to section 244 of the Pena,l Code Act and kidnapping with intent to obtain a ransom contrary to section 243 (ll (c). The sections provide as follows;

Section 243lLl (c) of the Penal Code Act provides:-

# "243. Ktdnapplng or d,etainlng unth lntent to murd,er, etc.

(1) Any person who by force or fraud kidnaps, abducts, takes auaA or detains anA person against his or her will-

(a)

(b)

utith intent to re a ransom or bene the liberation <sup>o</sup> such a personfrom tle danger of being murdered. commits an o-f-fence and is liable on conuiction to suffer d.eath. .

Section 244 of the Penal Code Act provides:-

# <sup>o</sup>244. Ktdnapping or abducting unt4 intent to confi.ne person.

Ang person who kid.naps or abducts anA person with intent to cause that person to be secretlg and wrongfuUU confined commits a felony and is liable to imprisonment for ten years.o

w> Awt CY

Page 18 of 21

The maximum sentence, as per section 244 of the Penal Code Act, for the offence of kidnapping or abducting with intent'to confine a person for which the Appellant was charged and convicted is 1O years. The learned trial Judge passed a sentence of 17 years which was beyond the maximum sentence stipulated in the section 244 of the Penal Code Act.

We therefore find that the sentence passed by the trial court was illegal and it is hereby accordingly set aside.

With regard to the offence of kidnapping with intent to procure a ransom contrary to section 243 of the Penal Code Act, we find that the learned trial Judge did not take into account the period the Appellant spent on remand as stipulated by Article 23(8) of the Constitution. We a-lso find that the sentence of 17 years was illegal. As such, we shall proceed to resentence the Appellant on both counts under Section 11 of the Judicature Act.

Section 11 of the Judicature Act vests this court with the same powers as the trial Court in the following terms:

# o77. CoutA, of Appeal to hanre 'pourers of the court of orlgtnal Juttsdtctton.

For the purpose of hearing and determining an appeal, the Court of Appeal shall haue all the pou)ers, authority and jurisdiction uested under any utrittenlaut inthe courtfromthe exercise ofthe original juisdictionof u.thich the appeal oiginally emanated."

In the exercise of the above mandate, we have considered the mitigating factors that were presented during the Allocutus of the Appellant. He is a first offender, there being no record of previous conviction in Uganda. He has a family that resides in South Africa for which he is the sole bread winner. He also provides for relatives who reside in Nigeria.

However, we take cognizance of the fact that these offences were planned by international criminals who included the Appellant. The Appellant and his

UZ L{w.tl Page 19 of 21

CY

accomplices propagated a crime that required the victims to incur high travel costs to Uganda. The Appellant rented a house, hired vehicles and recruited 'staff'to perpetuate the offence. The Appellant and his accomplices were arrested in the course of committing a similar offence. That shows that they are not ordinary criminals.

Executing these crimes in Uganda put this country into great disrepute. That does not only reflect Uganda as an unsafe place, but it compromises our tourism sector. This court is duty bound to protect this natural resource. There is therefore need to pass a sentence that will deter this kind of sophisticated crimes.

As such on count one, the Appellant is sentenced to 3O years'imprisonment. From that we deduct the period of 8 years that the Appellant has spent on remand. On count two, we sentence the Appellant to 10 years'imprisonment and deduct the eight years that he spent on remand. The sentences are to run consecutively, with effect from 16th November 2021, the date of conviction.

-We so order

Delivered and dated this .2!t...day or 2024

RICHARD BUTEERA Deputy Chief Justice

CHRISTOPHER GASHIRABAKE Justice of Appeal

V

KIHIKA Justice

Page 20 of 20