Wagaba v Uganda (Criminal Appeal 82 of 2010) [2024] UGCA 317 (22 November 2024)

## THE REPUBLIC OF UGANDA

## IN THE COURT OF APPEAL OF UGANDA AT FORT PORTAL

(Coram: Geoffrey Kryabwire, lluzamiru |tlutangula Kbeedi & Margaret Tibulya, JJA)

## CRIMINAL APPEAL NO. OO82 OF 2()1O

WAGABA MOSES APPELLANT

#### VERSUS

## UGANDA RESPONDENT

[Appeal against both conviction and sentence arising from the Judgment of the High Court of Uganda at Fort Portal fion. Justice Akiiki-Kiza) made on the 14th day of Mlay, 2010 in Criminal Sesslon Case No. No. HCT-01-CR-SC-033-20051

### JUDGMENT OF THE COURT

#### lntroduction

- t1l The Appellant was convicted of the offence of Robbery contrary to Section 285 and 286 (2) of the Penal Code Act, Cap. 120 and sentenced to 20 years' imprisonment. - 12\ The prosecution's case before the trial Court was that the Appellant, together with others, in the night of the 09th June 2004 broke into the residence of one Dorothy Nyakato (victim), at Rwengoma village, West Division, Fort Portal Municipality in Kabarole District, robbed her of cash, Ugx 64,000/=, a bag containing household items which included four pairs of bedsheets, a suitcase full of clothes, a blanket, a bed cover and a mobile phone Nokia 5110, all valued at Ugx 600,000/=. - t31 During the robbery, the victim was hit with a panga on both sides of her cheeks, and her lip pellant by and forehead cut using the panga. The victim managed to recognize the

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appearance while among the robbers/attackers with the aid of the light which was in the house.

- [4] The following morning, the matter was reported to the Police - [5] The victim was medically examined and the injuries sustained during the attack were classifled as bodily harm. - [6] As a result of this incident and other robberies which were taking place in Fort Portal town, the Police carried out an operation in the town, The Appellant was one of the several individuals who were arrested during the operation, Upon his arrest on 23'd August 2004, a search was conducted on his house by the Police and various items which were suspected to have been stolen were found at his residence. The recovered items were taken to Fort Portal Police Statlon. The Police contacted the various people who had lodged robbery cases with the Police Station to go and try to identity their properties, Those who responded included Dorothy Nyakato (the victim). She managed to identify some of the items that were stolen from her home during the material night. - [7] An identiflcation parade was conducted, and the victim identified the Appellant at the parade as one of her attackers in the night of 09,06.2004. The Appellant was medically examined and found to be normal. He was subsequently charged with the commission of Aggravated robbery. - [8] The Appellant denied the charges, underwent a full trial, was convicted and sentenced as already mentioned

### The Appeal

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tgl Dissatisfied, the Appellant appealed to the Court of Appeal against both the conviction and sentence on four grounds as set out in the Amended Memorandum of Appeal as follows:

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- THAT the Learned Trial Judge erred in law and fact by failing to properly evaluate the evidence in respect of a poorly conducted identification parade and recentpossession ofiterns thereby arriving at a wrong decision. 1 - 2. THAT the Learned Trial Judge erred in law and factin imposing a sentence of <sup>20</sup> years' imprisonment which is deemed to be manifestly harsh and excessive in the obtaining circumstances. - THAT the Learned Trial Judge erred in law and fact when he did not deduct the period spent on remand hence occasloning a miscarriage of iustice. 3 - 4. THAT the Learned Trial Judge erred in law and fact when delivered an ambiguous sentence yet the same Uvas to run concurrently with the other sentence hence occasioning a miscarriage of justice.

## Representation:

- [10] At the hearing of the appeal, tt/r. Geoffrey Chan Masereka appeared for the Appellant on State Brief, while Mr. Sam Oola, Senior Assistant Director of Public Prosecutions, appeared for the Respondent. - [11] Both parties filed written submissions as directed bythe Court. This appealhas thus been disposed of on the basis of the written arguments.

## Prelimina rv obiection

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- [12] Counsel for the Respondent objected to ground one contending that it contravenes Rule 66(2) of the Judicature (Court of Appeal Rules) Directions, S.l. 13 -10 in so far as it combines two complaints under one ground and is not concise. Counsel prayed that ground one of the Memorandum of Appeal be struck out for non-compliance with an obligatory provision of the law. - Irr [13] The Appellant did not file a reply to the Respondent's objection.

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# [14] Rule 66 (2) ofthe Court of Appeal Rules provides as follows

"(2) The memorandum of appeal sha// set forth concisely and under distinct heads numbercd consecutively, without argument or narrative, the grounds of objeclion to the decision appealed against, specifying, in the case of a first appeal, the points of law ot tact or mixed law and fact and, in the case of a second appeal, the points of law, or mixed law and fact, which are alleged to have been wrongly decided, and in a thid appealthe mafterc of law of grcat public or general impolance wrongly decided."

- [15] This Court has very carefully considered the wording of ground one. The complaint about its absence of precision or conciseness has no basis. - [16] As for the Respondent's second objection against ground one, it is our finding that the Appellant's complaint in ground one is about how the trial Court evaluated the evidence before it in two aspects namely: the conduct of the identification parade and the items held by the Court to have been in the recent possession of the Aooellant. Whereas we agree that each one of the two aspects could have qualified to be raised as a separate ground of appeal, we are satisfied that no injustice arose out of joining the two under one ground of appeal as each aspect was properly understood and comprehensively responded to by the Respondent in her written submissions - [17] Accordingly, the preliminary objection is hereby dismissed

### Resolution of the substantive appeal

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[18] We have carefully read the submissions of both Counsel and we have also read the record of appeal and the authorities cited to us, and others not cited by the parties. The appeal before us is against both conviction and sentence. As a first appellate Court, it is our duty to re-appraise all evidence that was adduced before the trial Court and come to our own conclusions of fact and law while making allowance for the fact that we neither saw nor heard the witnesses testify. (See: Rule 30 (1)(a) of the Judicature (Court of Appeal Rules) Dhections, S.l 13-10; Fredrick Zaabwe vs. Orient Bank Ltd, Supreme Coufi


# Civil Appeal No. 4 of 2006; and Kfamunte Henry vs. Uganda, Supreme Court Criminal Appeal No.10 of 1997.

We shall bear in mind the above principles as we resolve the four grounds of appeal separately.

## Ground one - ldentification parade and reliance on recent pos ion of stolen items

- [19] The gist of the Appellant's complaint in ground one is that the trial Judge failed to properly evaluate the prosecution evidence regarding the participation of the Appellant in the commission of the offence of Aggravated robbery and thereby erroneously convicted him. lt is the Appellant's contention that the trial Judge relied on two major pieces of evidence to convict the Appellant, namely: the identification by the victim, and the properties which the prosecution claimed to have been found on the Appellant pursuant to the doctrine of recent possession. However, argued Counsel for the Appellant, the Court failed to properly evaluate them which resulted in arriving at a wrong conclusion. - [20] As far as the identification parade is concerned, Counsel for the Appellant argued that it was not conducted in accordance with the prescribed procedure as detailed in the cases of R v. Mwango slo Manaa n\$q <sup>3</sup>EACA 29, Ssentale Vs. Uganda [1968] EA 365, Sfephen MugumeVs. Uganda, Criminal Appeal No.20 of 1995(SC), and Baluku & Anor Vs. Uganda. Criminal Appeal No.21 of 2014. - [21] Further, the ldentification Parade Report was admitted by the trial Court despite the Police Officer who conducted the identification parade having not been called as a witness and there was no opportunity to cross-examine him on his report. Mr' - [22] As regards the reliance on the doctrine of recent possession by the trial Court, Counsel for the Appellant submitted that the principle was wrongly invoked. Counsel argued that PWl testified that the properties were found in the Appellant's home but that they were broug"ll

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by other people, namely: A4 (Birungi Robert) and A5 (Natuhwera lvan) and that the Appellant was never found in possession of those properties.

- [23] The Appellant urged this Court to overturn the conviction and set the Appellant free, - {241 Counsel for the Respondent disagreed. He submitted that with or without the identiflcation parade report, there was other cogent evidence relied on by the trial Judge to convict the Appellant. The trial Judge was alive to the law relating to the conduct of ldentification Parades. He was also alive to the fact that the Police Officer who conducted the identification parade had passed away before testifying and thus corroborated the evidence of identification of the Appellant with the doctrine of recent possession, having found that the conditions as described by the victim (PW1) were not favourable for correct identification. - [25] With regard to the issue of recent possession, Counsel for the Respondent contended that the trial Judge was alive to the law on the doctrine of recent possession as set out in the cases of Kakooza Godfrcy vs. Uganda, Supreme Couft Criminal Appeel No. 03 of 2008 and Bogere Moses and Another vs Uganda, Supreme Coud Criminal Appeal No, 1 of 1997, and considered the fact that the Appellant did not give any explanation as to how he came to be in possession of several items of propedy proved to have been stolen from the victim's home but simply denied that they were recovered from his house, He then came to the right conclusion to convict the Appellant. - [26] The Respondent prayed to th is cou rt to uphold the decision of the trial Court.

q.

- [27] We have reviewed the evidence before the trial Court and the resultant judgment. Right from the outset of the judgment, the trial Judge correctly set out the ingredients of the offence which the prosecution had the burden to prove, namely: - i. There must have been theft - li. The theft was accompanied by violence or a threat thereof.

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- A deadly weapon was used or threatened to be used during the robbery, or death or iii. arievous harm occurred. - The accused persons must have participated in the robbery. iv. - [28] The trial Judge rightly held that the first three ingredients were not contested by parties before him. Even before this Court, that finding has not been contested by the Appellant. The only contest before the High Court, which has also been escalated to this Court, relates to the ingredient of participation of the Appellant in the commission of the offence. - From the record, the evidence of identification of the Appellant came from the victim herself [29] who testified as "PW1". She was a single identifying witness. The trial Judge aptly summarised the evidence of PW1 in the judgment. It was her testimony that the robbers broke into her house at night between 1:00a.m and 2:00a.m. At that time, she was asleep and was woken up by the sound which arose from the door being forcefully broken by the robbers using a big stone. The robbers after gaining entry into the house asked for money from her and when she replied she had none, one of them hit her with the flat side of the panga on both of her cheeks. She was also cut on the lip and forehead as the robber kept on demanding for money. She produced Ugx 50,000/= and gave it to him. He asked for more and the victim directed him to get it from the suitcase. Then she saw his face. Thereafter, the robbers started collecting household items including those which were exhibited as PE10 – PE17. Among the property stolen was her Nokia mobile phone. Later on, she was called to the Police Station where she was shown some recovered property. She identified some of them as hers, which had been robbed on the material night. - [30] When evaluating the evidence of PW1, the trial Judge found that the conditions were not favourable for a correct identification by PW1. She did not know the Appellant before the night of the attack. The light at the scene was from the torch of the robbers and not sufficient. Indeed, the witness herself stated that she could not recognise the attacker properly.

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13ll Thetrial Judge also considered the conductofthe identification parade and found that even if the victim was able to point the Appellant out of the volunteers who were part of the identification parade, there were anomalies in the conduct of the exercise and in the ldentification Report itself which was admitted as one of the prosecution exhibits. The trial Judge observed that:

> However, his repoi indicatesthat some items werc not filled on the form. For example, it is not known whether the accused made any objections to the arrangements at the parade or not. Also, nothing was recorded regarding special features, if any, at the parade - i.e. whether the members of the parade were asked to walk, talk, or thei mode of dress etc. "

- [32] As such, the trial Judge required corroboration of the evidence of identification. The corroboration was found in the evidence of the Investigating Officer (PW2) and PW3 (the officer in Charge of the exhibits stores). The trial Court likewise aptly summarised the evidence in the Judgment. PW2 testified that following a spate of robberies that were witnessed in and around Fort Portal at the material time, the Police carried out operations in and around Fort Portal. The Appellant was among the people arrested during the operations. Upon searching his premises, various items suspected to be stolen property were recovered from his house. PW1 was among the victims who were called to Fort Portal Police Station where the items had been taken to try and see whether her properties were among those recovered from the Appellant's house. PW1 identified exhibits PE10 - PE1 as among the items the robbers had taken from her at the material night CPa - [33] The trial Judge held that upon the Prosecution adducing the evidence that recently stolen items were found in the possession of the Appellant, he had an obligation to explain his possession in order to rebut the presumption of participation in the robbery. lnstead, the Appellant in his unsworn evidence denied being anested in Fort Portal and accompanying the Police to carry out a search of his residence. He denled that the s len items were recovered from his res dence.

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- [34] The trial Court after weighing both versions of the evidence, and taking into account the demeanor of the witnesses, found the Appellant to be a liar while the prosecution evidence was found to be more credible. The trial judge then concluded that on account of the doctrine of recent possession which conoborated the identification of the Appellant by PWl , the Appellant had been squarely placed at the scene of crime by the prosecution. As such, his failure to offer an explanation as to how he had come to be in possession of the stolen property rendered him culpable. - [35] The trial Judge concluded his analysis thus:

"All in all I find that the identification of A3 at the scene by PW1, was affirmed by the identification parade conducted 2 days after A3's arrest and lastly by finding PWS sfo/en phone in his house. All this puts A3 at the scene of the crime. I accordingly find him guilty of Robbery Contrary fo sectlon 285 and 286 (2) of the Penal Code Act and I convict him accordingly."

[36] The analysis of the evidence, application of the law and conclusion of the trial Judge cannot be faulted. His approach to the resolution of the issue of the Appellant's participation was in accordance with the doctrine of "recent possession" which was reiterated by the Supreme Court in the case ol Kakooza Godfrey v Uganda, Supreme Court Criminal Appeal No.3 of2008 thus:

> "... lt ought to be realized that where evidence of recent possession of stolen propely is proved beyond reasonable doubt, if raises a very strong presumption of parlicipation in the stealing, so that if there is no innocent explanation of the possesslon, the evidence is even stronger and more dependable than eyewrtnesses' evidence of identification in a nocturnal event. This is especla//y so because invariably the former is independently verifiable, while the later solely depends on the credibility of the eyewrfnesses". ()

[37] Accordingly, ground one of the appeal fails.

#### Ground two: Severitv of the sentence.

[38] The main complaint of the Appellant in ground two is that the sentence of 20 years was out of range with decided cases and contravened the need for consistency of Courts in 9lPage t

sentencing. Counsel cited a number of cases where a lesser sentence than 20 years was imposed for the offence of Aggravated robbery. These were : kjura & 2 Ors Vs. Uganda UGCA No.37 of 2014 whete-lhe convict was sentenced to 10 years'imprisonment having robbed properties worth '1,750,000/= and used pangas on the complainant causing grievous harm to hjm; Komakech Vs. Uganda UGCANo. 15 ol2014,wherc a sentence of 14 years' imprisonment was upheld for robbery of money at a gun point worth of the day's sales at lVo Petrol Station at Kagoma, Wakiso District during which a bullet was fired and injured the bladder of a one Kigozi John; and Kusernererwa & Anor Vs. Uganda UGCA No. 38 of 2014 where this Court imposed the sentences to '12 years and 13 years for the two Appellants who were convicted of the robbery of UGX 2,000,000/= and had used a deadly weapon in the process of robbery cj--?\*

- [39] The Appellant urged this Court to find that the sentence of 20 years' imprisonment was manifestly harsh and excessive in the circumstances and should be judiciously reduced. - [40] Counsel for the Respondent disagreed. He submitted that the trial Judge spared the Appellant the maximum sentence of death and the next most serious sentence of life imprisonment and passed a sentence of 20 years' imprisonment. Counsel cited several cases decided by this court and the Supreme Courtwhere the Appellants were convicted of aggravated robbery and sentenced to higher imprisonment terms than twenty years: ln Zziwa Jackson vs. Uganda, Coutt of Appeal Criminal Appeal No. 079 of 2014, this Court upheld the sentence of 30 years' imprisonment of the Appellant who robbed the victim of UGX. 180,000/= while armed with an iron bar and used the iron bar to hit the victim. ln Bogere Assimr4/e Moses and Anothet vs. Uganda, Supreme Court Criminal Appeal No, 39 of 2016, the Supreme Court upheld the sentence of 20 years' imprisonment. The trial Judge had found that there was no death, no violence during the commission of the offence and some of the stolen property was recovered. ln Kakooza Godfrey's case (supra), the victim was robbed of a motor vehicle, which was subsequently recovered. At the trial, the prosecution failed to prove the deadly nature of the weapon used in the /

L0lP ay'{ ,a' robbery. Consequently, the appellantwas convicted of simple robbery and sentenced to'18 years' imprisonment. The sentence against the appellant was confirmed on a final appeal to the Supreme Court.

- [41] The respondent opined that the sentence of 20 years' imprisonment against the Appellant herein is neither harsh nor excessive in the circumstances. - [42] ln resolving this ground, we are guided by the principles set out by the Supreme Court in Kiwalabye Bernard versus Uganda, Criminal Appeal No. 143 of 2001 and by the Court of Appeal for Eastern Africa in James S/O Yoram versus Rex 1950 [EACA] 18 and applied by this court in various cases, to the effect that an appellate court will only interfere with the sentence passed by a trial Court in exercise of its discretion on sentence if it appears that the trial Court acted on wrong principles or overlooked some material facts or the sentence is illegal, or manifestly excessive as to amount to a miscarriage of justice. - [43] ln Ogalo slo Owoura v R (19Ft4) 21 EACA 270 the Court held: -

"... The principles upon which an appellate court will act in exercising its iurisdiction to review sentences are firmly establrshed. The Courl does not after a sentence on the mere ground that if the members of the court had been trying the Appellant they might have passed a somewhat different senfence and it would not ordinarily interfere with the discretion exercised by a trial Judge unless as was said in James v R, (1950) 18 EACA 147, 'it is evident that the Judge has acted upon wrong principle or overlooked some material factor". To this we would also add a third criterion, namely, that fhe senfence is manifestly excesslve in view of the circumstances of the case. An appropriate sentence should be proportionate to the offence with the gravest offences attracting fhe most severe penalties and /esser offences in terms of aggravation attracting /ess severe penalties. Courts have also added another principle of consistency in terms of equality before the law so that offences committed under similar circumstances with similar degree of gravity should attract the same range of sentences therefore precedents of the appellate couis are a relevant guiding actor..." q

144) The sentencing Ruling of the trial Couch was couch thus

## "Court Sentence and reasons thereof:

Accused (A3) [the Appellant herein] is a second offender, having been convicted in same sesslon. 44 is allegedly a first offender. Both have spent 6 years \* n\*\*O

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into consideration while considering the sentence to impose on them. They are both young men and have prayed for leniency and look repentant. A4 is said to have a family he has to take care of.

However, accused persons committed a serious offence. Robbery Contrary to Section 285 and 286 (2) of the Penal Code Act, carriers a possible maximum sentence of death upon conviction. Hence the law takes a serious view of the convicted robbers. In this particular case, the accused persons attacked an old, defenseless woman, and tortured her till they got money from her and took almost all of her household properties. The accused are admittedly young men, who can serve this nation well by carrying out honest income generating activities instead of taking it easy and reaping where they had not sow.

In the premises, the accused do not deserve mercy on the part of the Court. Although A3 is a subsequent offender but the conviction was within this session, hence it cannot be said that he is a habitual offender.

Putting everything into consideration, I sentence, A3 to 20 (Twenty) years imprisonment and A4, to the same 20 (Twenty) years imprisonment.

Akiiki-Kiiza **JUDGE** 14/05/2010"

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- [45] The Appellant's major complaint about the sentence is that it was made in breach of the principle of consistency which resulted in its being harsh and manifestly excessive. - [46] The obligation of the Court to ensure consistency of its sentences with those of decided cases is set out under Sentencing Principle No.6(c) of the Constitution (Sentencing Guidelines for Courts of Judicature) Practice Directions, 2013 – Legal Notice No.8 of 2013 in the following terms:

"Every court shall when sentencing an offender take into account ... the need for consistence with appropriate sentencing levels and other means of dealing with offenders in respect of similar offences committed in similar circumstances."

[47] The importance of the principle of consistency in sentencing was stated by the Supreme Court of Uganda in the case of **Aharikundira Yustina Vs Uganda, Supreme Court Criminal Appeal No. 27 of 2015**, thus:

> "... It is the duty of this court while dealing with appeals regarding sentencing to ensure consistency with cases that have similar facts. Consistency is a vital principle

of a sentencing regime. lt is deeply rooted in the rule of law and requires that laws be applied with equality and without unjustifiable differentiation."

- [48] We have reviewed the cases cited by both parties in respect of ground two. The distinguishing feature of the instant matter from the cited cases is that at the time of being sentenced by the trial Court, the Appellant was a second offender, having been previously convicted on the 8th day of April, 2010 of the offences of murder and aggravated robbery in High Court Criminal Session Case No. HCT-01-CR-SC-0034 of 2005 and sentenced to 25 years' imprisonment for both sentences. Being a second offender is an aggravating factor which attracts a higher sentence than being a first offender. - [49] From the record, even if the trial Judge appears NOT to have given sufficient weight to the fact of the Appellant being a second offender on the charge of Aggravated robbery, we are satisfied that the sentence of 20 years' imprisonment term was an appropriate sentence in the circumstances of the case and is neither harsh nor manifestly excessive as claimed by the Appellant. Ground two therefore fails.

### Ground three: Remand period

- [50] The Appellant's complaint in ground three of the appeal is that the trial Judge, in arriving at the sentence of twenty years' imprisonment, never arithmetically deducted the period the Appellant spent on remand contrary to the principles enunciated in Rwabugande Moses Vs. Uganda, Supreme Court Criminal Appeal No.25 of 2014. u - [51] Counsel for the Respondent disagreed and submitted that Rwa gande case is inapplicable to the sentencing decision, the subject matter of this appeal, as it was made on 14rh May 2010 long before the Supreme Court decision in the Rwabugande case. The Respondent argued that the trial Judge took into account the remand period in accordance with the prevailing sentencing regime. Counsel ciled Kzito Senkula Vs. Uganda, Supreme Court Criminal Appeal No.24 of 2001 (unreported) in support of his position.

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[52] Consideration of the remand period by a sentencing Court emanates from Article 23 (8) of the Constitution of the Republic of Uganda, 1995 which is couched as follows:

> "Where a person is convicted and sentenced to a term of imprisonment for an offence, any period he or she spends in lawful custody in respect of the offence before the completion of his or her trial shall be taken into account in imposing the *term of imprisonment." [Emphasis added]*

[53] According to the case of **Rwabugande Moses Vs. Uganda**, (supra) "taking into account" involves an arithmetic deduction of the remand period. The Supreme Court stated it thus:

> "the taking into account of the period spent on remand by a court is necessarily" arithmetical. 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 specifically credited to an accused"

[54] The sentencing order of the trial Court in the instant matter was made on 14<sup>th</sup> May 2010. The relevant excerpt from the Sentencing Order was couched thus: -

"Court: Sentence and reasons thereof:

Nov

Accused (A3) is a second offender, having been convicted in same session. A4 is allegedly a first offender. Both have spent 6 years on remand. I take this into consideration while considering the sentence to impose on them." [Emphasis added]

- [55] We accept the Respondent's submission that the decision in **Rwabugande Moses Vs. Uganda**, (supra) which was rendered in March 2017 is inapplicable to the sentencing decision of the trial Court which is an earlier decision. - [56] We are satisfied that while sentencing the Appellant, the trial Judge demonstrated that he was mindful of the period that the appellant spent on remand. This complied with what was the then sentencing regime as enunciated by the Supreme Court in several decisions rendered before the **Rwabugande case** which include **Kizito Senkula Vs. Uganda**, **Supreme Court Criminal Appeal No. 24 of 2001** (unreported), where the Supreme Court stated as follows:

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"As we understand the provisions of Aticle 23 (B) of the Constitution, they mean that when a trial Coui imposes a term of imprisonment as senfence on the convicted person the Coul should take into account the period which the person spenf in remand prior to his/her conviction. Taking into account does not mean an arith meti cal exerci s e. "

[57] Accordingly, we find that the sentence imposed by the learned trial Judge was not illegal as claimed by the appellant. Ground three therefore fails.

## Ground four: Ambiquitv of the sentence

[58] Ground four of the appeal was couched as follows:

"The Learned Trial Judge ened in law and factwhen he delivered an ambiguous sentence yetthe same was to run concurrently with the other sentence hence occasioning a miscarriage of justice."

- [59] The Appellant's complaint in ground four is that at the time the trial Judge sentenced the Appellant in the instant matter on 14rh May 2010, he was aware that the Appellant was already serving sentences of 25 years' imprisonment which were running concurrently following his conviction for the offences of murder and robbery in another trial namely, Fort Portal High Court Criminal Session Case No. 34 of 2005. However, argued the Appellant, the trial Judge in imposing 20 years' imprisonment never clearly explained whether the sentence of the 20 years was to run consecutively or concunently with the earlier sentences of 25 years which, opined the Appellant, rendered the contested sentence ambiguous and occasioned a miscarriage of justice. q - [60] Counsel cited Section 2 of the Trial on lndictments t, Cap. 23 and the Supreme Court decision in Magala Ramathan Vs. Uganda Supreme Court Criminal Appeal No. 01 of 2014 for the position that the general rule is for the High Court to impose consecutive sentences and that a convict will concurrently serve sentences arising out of distinct offences only ifthe court so directs. Nonetheless, whether a Judge opts for a consecutive or <sup>a</sup>concurrent running of sentences, his/her reasoning should be on record.

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- [61] Counsel urged this Court to answer ground four in favour of the Appellant and order the sentence in the instant case to run concurrently with the earlier sentences. - [62] ln reply, Counsel for the Respondent submitted that ground four lacked any basis. Section 2 of the Trial on lndictments Act, Cap. 23 was inapplicable to the instant matter where the sentences arose from two different trials even though both trials were before the same Judge and took place during the same Criminal Session. The Respondent stated that the instant appeal arose from High Court Criminal Session Case No. 0033 of 2005 at Fort Portal where the Appellant was convicted of Aggravated robbery and sentenced to 20 years' imprisonment. On the other hand, the 25 years' sentences arose from High Court Criminal Session Case No. 0034 of 2005 in which the appellant was convicted on both counts of murder and Aggravated robbery and sentenced to 25 years' imprisonment terms running concurrently. As such, argued the Respondent, Section 2(2) of the Trial on Indictments Act is inappljcable to the instant case because High Court Criminal Session Case No. 0034 of 2005 and 0033 of 2005 are distinct and separate files and the sentence in each of them has no bearing or connection to the other - [63] The Respondent refened us to Section 122{1) of lhe Trial of Indictments Act as the applicable law and urged us to reject ground four of the appeal for being misconceived. - [64] lt is not in contest that at the time of being sentenced to the 20 years' imprisonment term for robbery in Criminal Session Case No. 33 of 2005, the Appellant was already a convict in another file, Criminal Session Case No. 34 of 2005, and had been sentenced to serve 25 years' imprisonment term on each one of the offences of murder and Aggravated robbery running concurrently. During the sentencing proceedings from which the instant appeal arises, the trial Court was informed by the Prosecution that the Appellant was a second offender having been previously convicted of l\4urder and Aggravated robbery by the same Judge in High Court Criminal Session Case No. 34 of 2005. The assertion was not denied by the Appellant's Counsel. He simply prayed to cou( to order the sentence in Criminal

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Session Case No. 33 of 2005 to run concurrently with the sentences in the earlier case, Criminal Session Case No. 34 of 2005.

[65] In the circumstances, we accept the Respondent's arguments that Section 2 (2) of the Trial on Indictments Act, Cap. 23 does not apply to the instant situation where the convictions and sentences arose from two distinct trials. The section applies where a conviction is made during the same trial involving different counts set out in the same Charge Sheet or Indictment. The section is couched as follows:

#### "Sentencing Powers of the High Court

- The High Court may pass any lawful sentence combining any of the sentences which $(1)$ it is authorised by law to pass. - When a person is convicted at one trial of two or more distinct offences, the High $(2)$ Court may sentence him or her for those offences to the several punishments prescribed for them which the court is competent to impose, those punishments, when consisting of imprisonment, to commence the one after the expiration of the other, in such order as the court may direct, unless the court directs that the punishments shall run concurrently. - (3) For the purposes of appeal, the aggregate of consecutive sentences imposed under this section, in the case of convictions for several offences at one trial, shall be deemed to be a single sentence." - In the same vein, the Supreme Court decision in the case of **Magala Ramathan v Uganda**, [66] Supreme Court Criminal Appeal No.01 of 2014, [2017] UGSC 34 (20 September 2017) ought to be understood in the context that it dealt with sentences arising from different Counts of the same Charge Sheet/ Indictment. - [67] In his Sentencing Ruling, the trial Judge acknowledged that the Convict was a second offender. After considering both the aggravating and mitigating factors that were set out before him, he concluded thus:

"In the premises, the [convicts] do not deserve mercy on the part of the Court. Although [the Appellant] is a subsequent offender but the conviction was within this session, hence it cannot be said that he is a habitual offender.

Putting everything into consideration, I sentence, [the Appe ant] to 20 (Twenty) years imprisonment ..."

- [68] lt is worth noting that whereas the Appellant had, during the a//ocutus, expressly prayed to the trial Court to issue an Order by which the sentence in the instant matter would concurrently run with the sentences in the earlier case, Criminal Session Court Case No. 34 of 2005, the trial Court's Ruling was silent about the request. The Appellant, in the circumstances, opines that the sentence as rendered by the kial Court is "amblguous'. - [69] We do not accept the argument of the Appellant that the omission by the trial Court to expressly pronounce itself on the aspect of whether the sentence of twenty years is to run concurrently or otherwise with the earlier sentences per se, rendered the sentence ambiguous. As an ordinary English word, "ambiguous" is an adlective which means a word or statement "that can be understood in more than one way; having different meanings" See: Oxford Advanced Learner's Dictionary of Current English, by A. S. Honby, Seventh edition. - Section 122(1) of the TlA, Cap. 23 which is couched as follows [70] The true meaning of the trial Court sentence ought to be understood in the context of

#### "Sentences cumulative unless otheflrise otdered

- t) Where a person after conviction fot an offence is convicted of another offence, either before sentence is passed upon him or her under the first conviction or before the exptation of that sentence, any sentence of imprisonment which is passed upon him or her under the subsequent conviction shall be executed after the exptation of the former sentence, unless the coutt diecfs that lt sha// be executed concurrently with the forner sentence or of any part of it; but it shall not be lawfulfor the coufi to dtect that a sentence of imprisonment in default of payment of a fine shall be executed concurrenUy with a former sentence undet section 110(c)(i) or any paft of it." - [71] Our understanding of the above provision is that where the trial Court passes a second sentence onto a convict before the expiry of the sentence passed against him or her under the first conviction/trial, as was the case in respect of the impugned sentence, then it ows that the sentence passed under the second conviction takes eflecl /, 3 automatical y fol

<sup>18</sup>lP age

upon the expiry of the term of the sentence for the first conviction unless the trial Court has directed that both sentences should run concunently.

- 172) Put differently, the general rule is that the sentences for convictions under different trials automatically run consecutively while concurrency is the exception to the general rule. ln the instant matter, the omission by the trial Judge to expressly state the relationship between the execution of the sentence in High Court Criminal Session Case No. 33 of 2005 and the sentences in High Court Criminal Session Court Case No. 34 of 2005, automatically meant that the sentences were cumulative and NOT concurrent. As such, the claim that the sentence was ambiguous is unfounded. - [73] The aforesaid notwithstanding, it is better practice for the Sentencing Court to expressly state its decision whether the sentence in the second conviction is to run concurrently or not since this was an express prayer of the Appellant during the allocutus. However, we are satisfied that the omission of the trial Court to expressly state its finding and decision on that aspect of the allocutus did not occasion any injustice 9. - [74] The Appellant further faulted the trial Judge for not stating the reasons for the decision to sentence the Appellant the way it did. The Respondent disagreed. - [75] The importance of the court to give reasons for the exercise of its discretion was stated by the Supreme Court of Uganda in the case of Magala Ramathan v Uganda, Supreme Court Criminal Appeal No.01 of 2014, [201zl UGSC 34 (20 September 2017) lhus:

"Sentencing is a matter in which a judge exercises dlscretlon ... However, the discretion rs nol abso/ule. Judicial discretion is an lssue of accountability and should be exercised judicially. A judicial officer is accountable to explain lhe reasons for exercising the discretion in a particular way. . ."

[76] The reasons which lead to the decision of the trial Court to impose the sentence of 20 years were clearly set out in the Sentencing Ruling, and incorporated both the aggravating and mitigating factors that were set out before the trial Court. Accordingly, faulting the trial Cou\$ for omitting to give the reasons for the sentencing decision is without a basis.

<sup>u</sup>,, "/r,

[77] ln the result, the conviction and sentence against the Appellant are upheld.

# DISPOSITION.

- 1. The appeal is dismissed. - 2. The conviction and sentence by the High Court are hereby confirmed.

## We so order.

Delivered and dated this day of 2024. N\A^N4/'

GEOFF IRYABWIRE Justice of Appeal

MUZAMIRU MUTANGULA KIBEEDI r[,

Justice of Appeal

(/\

M TIBULYA Justice of Appeal