Wanzagiro v Uganda (Criminal Appeal 186 of 2012) [2025] UGCA 75 (11 March 2025)

### THT REPUBLIC OF UGANDA

## IN THE COURT OF APPEAL OF UGANDA AT KAMPALA

Coram: Mulgagonja, Tibulga & Kazibttte Kawum| JJA

## CRIMINAL APPEAL NO. COA. OO. CR-CN. O L86-2OI2

#### BETWEEN

## trIANZAGIRO GODFREY: : : : : : : : : : : : : : : : : : : : : : : : : : : : : : : : : : : : : : : : : : : : : :: : APPELLANT

#### AND

### UGANDA::::::!:::::::::::::::::::::::::::::3::::::::i::::3:3::::::!3::::::::::!:: RESPONDENT

(An appeal against the decision of P. K Mugamba, J. (as he th.en was) deliuered on 2Vn June 2012 in Mbale Ciminal Session Case No. 081 of 2012)

## JUDGMENT OF THE COURT

## Introduction

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15 The appellant was indicted with the offence of murder contrary to sections 188 and 189 of the Penal Code Act. After a full trial, on 27rh June 2012, he was sentenced to 23 years'imprisonment.

### Background

The facts as stated in the judgment were that the appellant and the deceased, Mwambu Fred, were biological brothers, their father being

- 20 Bisasio Wonaku. On l4tt June 2OIO, the deceased was walking past the appellant's house on his way to the shops when the appellant accosted him and cut him with a panga. on the neck. The deceased ran away crying but he fell down in a valley nearby. Village mates responded to his alarm after he was cut and found him lying in a pool of blood. - 25 The appellant was not far from the scene of the crime and he held a panga.. When, their father asked him to assist him to carry his injured brother he said he could not touch his sworn enemy. The LC <sup>I</sup>

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Chairperson, apprehended the appellant and confined him in his house. The following day the appellant was taken to Sironko Police Station where he confessed to having inflicted the wound that caused the death of the deceased.

- 5 He was then indicted, tried, convicted and sentenced to 23 years' imprisonment. Dissatislied with the sentence, he appealed to this court on the following grounds: - 1. The learned trial judge erred in law and fact when he passed an illegal sentence of 23 years without considering the period spent on remand. - 2. Tlne learned trial judge erred in law and fact when he passed a sentence of 23 years without considering the mitigating factors. - 3. The learned trial judge erred in law and fact when he passed a manifestly harsh and excessive sentence of 23 years contrary to the principle of consistency in sentencing.

It was proposed that the appeal be allowed and the sentence be set aside, or varied. The respondent opposed the appeal.

### Representation

At the hearing of the appeal, the appellant was represented by Ms Faith Luchivya on state brief. The respondent was represented by Mr Aliwali Kizito a Chief State Attorney from the Office of the Director of Public Prosecutions. 20

Counsel for both parties filed written submissions as directed by the Registrar, which we considered before the hearing. At the hearing, they each applied that the submissions be considered as their final

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arguments in the appeal. This judgment was therefore based on the 25 written submissions

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Counsel for the appellant sought to validate the Notice of Appeal and for leave to file the Memorandum of Appeal out of time. Counsel for the respondent did not object and leave was granted. She further applied for leave to appeal against sentence only as is required by section 131 (1) of the Trial on Indictments Act, and since counsel for the respondent did not object, leave was granted.

#### Consideration of the Appeal

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The principle that this court will only interfere with a sentence imposed by the trial court when it is illegal or founded on wrong principles of law has been settled for a long time. The court will also interfere with the $10$ sentence where the trial court has not considered a material factor in the case; or has imposed a sentence which is harsh and manifestly excessive in the circumstances of the case. [See Kiwalabye Bernard $v$ Uganda Supreme Court Criminal Appeal No. 143 of 2001 (unreported), Bashir Ssali v. Uganda [2005] UGSC 21 and 15 Livingstone Kakooza v Uganda [1994] UGSC 17].] We took cognizance of these principles in disposing of this appeal.

We dealt with the grounds of appeal in chronological order, as counsel for the parties addressed them. The submissions of counsel were briefly reviewed before dealing with each of the grounds.

#### Ground 1

The complaint in ground 1 was that the sentence of 23 years' imprisonment was illegal because the trial judge did not deduct the period spent on remand from the final sentence.

#### **Submissions of Counsel** 25

In her submissions, Ms Luchivya relied on the decision of this court in Walimbwa Geofrey v. Uganda, Criminal Appeal No 154 of 2016 to

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persuade us to deduct the period spent on remand from the sentence imposed by the trial judge. She explained that due to the fact that the trial judge in that case did not deduct the period spent on remand, the court held that where there is a new rule of constitutional interpretation

- in respect of a penal provision, that new rule should apply to all existing $\mathsf{S}$ matters that have not been finally resolved. That the rule in Rwabugande v. Uganda, SCCA No 26 of 2014, that taking the time spent on remand into account means deduction thereof from the final sentence in an arithmetical manner, should apply to this case. - Counsel emphasised that the manner in which the trial Judge $10$ sentenced the appellant showed that he did not deduct the period spent on remand from the sentence he imposed. That as a result, this court ought to set the sentence aside as illegal and impose an appropriate one upon the appellant, after deducting the period spent on remand. - In reply, counsel for the respondent stated that the period of 2 years 15 that the Appellant spent on remand at the time of sentencing was considered by the trial judge. He pointed out that the sentence was passed on 27<sup>th</sup> June 2012 which was before the decision in Rwabugande Moses v. Uganda; SCCA No. 25 of 2014. It was his submission that according to Kizito Senkula v. Uganda; SCCA No. 24 $20$ of **2001**, taking into account of the pre-trial period of remand did not require the mathematical formula of deducting the exact number of years spent on remand, but rather a demonstration that the period had been considered. Counsel finally submitted that the principle in **Rwabugande** (supra) could not be applied retrospectively $25$

#### **Resolution of Ground 1**

The appellant's complaint in this ground was that the trial Judge did not deduct the period that he spent on remand from the sentence that

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he imposed upon him. Counsel relied on the decision of this court in Walimbwa's case (supra) to support her submissions.

This court extensively reviewed the decision in Walimbwa v. Uganda (supra) where the sentence was handed down by the trial court on 10<sup>th</sup> March 2016. In Maberi Simon v. Uganda, Criminal Appeal No. 065 of 2010, the same argument was made in respect of a sentence of 25 years that was imposed upon the appellant therein on the 29<sup>th</sup> April 2010, before the Supreme Court decision in Rwabugande. In Maberi's **case**, the court found and held that:

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"Clearly, the trial judge did not deduct the period of 20 months $10$ spent on remand though he did consider it. We find so because it is one of the reasons that he gave for handing down a sentence of 25 years' imprisonment. In **Abelle Asuman** (supra) the Supreme Court observed that:

'Where a sentencing Court has clearly demonstrated that it has 15 taken into account the period spent on remand to the credit of the convict, the sentence would not be interfered with by the appellate Court only because the sentencing Judge or Justices used different *words in their judgment or missed to state that they deducted the* period spent on remand. These may be issues of style for which a $20$ lower Court would not be faulted when in effect the Court has complied with the Constitutional obligation in Article 23(8) of the *Constitution.*

This Court and the Courts below before the decision in $25$ Rwabugande (supra) were following the law as it was in the previous decisions above quoted since that was the law then.'

> For the reasons that we have given above, we could not deduct the period spent on remand on the basis of the decision in **Walimbwa's** case. (supra)."

In Maberi's case, this court further relied on the decisions of the Supreme Court about the retrospective application of the rule in **Rwabugande** (supra). The court singled out the decision in Sebunya

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# Robert & Another v. Uganda, Criminal Appeal No. 58 of 2016; [2018]

**UGSC 73,** where it was held that:

"Rwabugande does not have any retrospective effect on sentences which were passed before it by courts "taking into account the periods [a convict] spends in lawful custody". Accordingly, we find no justifiable reason to fault the High Court for passing or the Court of Appeal for confirming the sentences that were imposed on the appellants as those sentences were in conformity with the law that applied at the time the sentences were passed."

In the instant case, while sentencing the appellant on 27<sup>th</sup> June 2012, $10$ at page 89 of the Record, the trial Judge found and held thus:

> "The convict is a young offender aged about 21 years old now. He killed his brother out of (a) grudge. He used a panga to do so. Even after committing the offence no remorse was shown by him. He is a character that is best brought away from the public for long. I have considered his age which is still low. He could be given a chance to reform. I have also put into consideration the 2 years he has spent on remand which I deduct from the sentence to be handed down. He is sentenced to 23 years' imprisonment."

- The ruling above clearly shows that the trial judge took the period of $2$ 20 years that the appellant spent on remand into account before he imposed his sentence. He deducted it from the sentence that he intended to hand down and came up with a final sentence of 23 years' imprisonment. - For the reasons that we have given above the sentence that was handed $25$ down by the trial judge was legal for he complied with the imperative in Article 23 (8) of the Constitution. We therefore could not further deduct the period spent on remand on the basis of the decision in **Walimbwa's** case (supra). Ground 1 therefore fails.

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$\mathsf{S}$ #### Ground 2

This was a complaint that the trial judge did not consider the mitigating factors advanced for the appellant.

# Submissions of counsel

5 Counsel for the appellant referred to the decision Gidudu v. Uganda, Criminal Appeal No. 8 of 2OI.7;!2O24|UGCA, where the court set the sentence of 25 years' imprisonment aside and substituted it with <sup>20</sup> years' imprisonment because the appellant was aged 27 years at the time the offence of murder was committed in 2006. She submitted that age must be considered as a mitigating factor. 10

Counsel further referred. to Ageet v. Uganda, Court Appeal Criminal Appeal No. 17 of 2OL9; l202gl UGCA 38, where the court, relying on the decision in Kabatera Steven v. Uganda CACA No 23 of 2OO1, emphasised that age is a material fact to be considered while sentencing. She prayed that the sentence be set aside.

In reply, counsel for the Respondent disagreed with the appellant's contention, stating that the trial judge considered both mitigating and aggravating factors before passing his sentence'

## Resolution of Ground 2

In Aharikundira Yustina v. Uganda, Supreme Court Criminal Appeal No.27 of 2O15; [20181 UGSC 49, delivered on 3'd Decembet 2018, the Supreme Court found fault with this court and the trial court for failing to take into account the mitigating factors that were advanced in favour of the appellant at her trial. The court found and held thus: 20

. The trial judge therefore ignored putting in consideration the mitigating factors raised by the appellant uhile passing the sentence.

The same trend preuailed in the Court of Appeal when it failed in its duty to re-eualuate the mitigating factors. We disagree uith tlrc respondent's

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argument that the Court of Appeal does not have to handle mitigation and that (the) mitigation process is done only in the trial court as was done in the instant case.

In the instant case, since the trial judge did not weigh the mitigating factors against the aggravated factors this automatically placed a duty on the Court of Appeal to weigh the raised factors (sic).

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From the foregoing, we find that the Court of Appeal erred in law when it failed to re-evaluate and re-consider the mitigating factors before it came to its conclusion. This court as (a) second appellate court and court of last resort can interfere with a sentence where the sentencing judge and the first appellate court ignored circumstances to be considered while sentencing; See Kyalimpa Versus Uganda (supra), Kiwalabye **Benard Vs Ug** (supra).

This renders taking the mitigating factors advanced for the appellant 15 into account far from discretionary; it is prudent to take all of them into account before sentencing, as the Supreme Court did in the case of **Aharikundira** (supra).

The appellant's complaint in this case is that the trial judge did not take

- it into account that he was still young when he committed the offence. 20 However, the excerpt reproduced at page 6 of this judgment shows that the trial Judge did consider the fact that the appellant was 21 years old and could be given a chance to reform. He therefore clearly took age into account, together with other mitigating factors. - Ground 2 therefore also fails. 25

### Ground 3

In this ground, the appellant complained that the sentence of 23 years' imprisonment was manifestly harsh and excessive in the circumstances of the case and contrary to the principle of consistency in sentencing.

#### Submissions of counsel 30

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Ms Luchivya submitted that the sentence of 23 years' imprisonment was harsh and excessive in the circumstances, considering existing precedents on sentences meted out in similar cases. She referred to Tumwesigye v. Uganda, Criminal Appeal No 46 of 2Ol2; 120t4l UGCA 61, where the appellant who had been convicted of murder and sentenced to 32 years'imprisonment had the sentence substituted with 20 years' imprisonment.

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She further referred to Mulolo v. Uganda, Criminal Appeal No.5O4 of 2Ol7; l2o22l UGCA 242, where this court maintained the sentence of 15 years' imprisonment for murder. She prayed that this court sets aside the sentence.

In reply, counsel for the respondent argued that the offence of murder is punishable with a death sentence and that therefore the sentence of 23 years'imprisonment is neither manifestly harsh nor excessive as it falls within the sentencing range prescribed by law. Further, that it is consistent with sentences meted out by the courts in similar circumstances.

Counsel then referred to Bakubye Muzamiru & Anor v. Uganda SCCA No. 56 of 2O15 where sentences of 40 years'imprisonment for murder and 30 years'imprisonment for aggravated robbery were upheld by the Supreme Court.

He further referred to Sekawoya Blasio v. Uganda; SCCA No. 24 of 2Ol4 and Sebutiba Siraji v. Ugan& CACA No. 515 of 2OO5, where sentences of life imprisonment were upheld for the offence of murder.

2s Counsel then submitted that the sentence of 23 years' imprisonment was appropriate in the circumstances as the appellant had exhibited total disregard of human life by cutting the neck of his own brother. He

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prayed that court upholds the sentence and dismisses the appeal for lack of merit.

#### **Resolution of ground 3**

The appellant's compliant in ground 3 was that the sentence of 23 years' imprisonment was manifestly harsh and excessive in the circumstances $\mathsf{S}$ of this case. However, counsel for the respondent implored us to maintain the sentence imposed by the trial court. And while counsel for the appellant cited cases with sentences imposed for murder that were lower than the 23-year sentence imposed by the trial judge, counsel for the respondent cited those that were higher. $10$

The expression *"manifestly excessive"* was explained in **Aharikundira** Yustina v. Uganda, Supreme Court Criminal Appeal No. 27 of 2005; **[2018] UGSC 49,** where the court observed as follows:

"*There is a high threshold to be met for an appellate court to intervene with*" the sentence handed down by a trial judge on grounds of it being *manifestly excessive. Sentencing is not a mechanical process but a matter* of judicial discretion therefore perfect uniformity is hardly possible. The key word is "manifestly excessive". **An appellate court will only** intervene where the sentence imposed exceeds the permissible $20$ range or sentence variation." *{Emphasis added}*

What needs to be addressed with regard to the sentence that was imposed on the appellant is consistency with sentences that have been handed down by the courts for similar offences, as it is required by paragraph 6 (c) of the Constitution (Sentencing Guidelines for the Courts of Judicature) (Practice Directions) 2013. The provision requires $25$ sentencing courts to take into consideration the need for consistency with appropriate sentencing levels and other means of dealing with offenders in respect of similar offences committed in similar circumstances.

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We are therefore under the obligation to consider sentences imposed by the courts for the offence of murder, in similar circumstances, before we come to a conclusion whether the sentence was manifestly harsh and excessive in the circumstances of this case. But before we do so, it is important to bear it in mind that the offence of murder of which the appellant was convicted is a serious offence, not only because it attracts the death sentence, as the maximum, but also because the offence of causing death is usually brutal.

- In Aharikundira Yusitina v. Uganda, Supreme Court Criminal Appeal No. 27 of 2O15; [2()181 UGSC 49, The appellant attacked and maimed her husband with a panga causing his death. the Supreme Court imposed a sentence of 30 years'imprisonment after setting aside the death sentence imposed by the trial court and upheld the decision of the Court of Appeal. 10 - In Latif Buulo v. Uganda, Supreme Court Criminal Appeal No.31 of 2Ol7; l2OL9l UGSC 68, the Supreme Court upheld a sentence of <sup>25</sup> years' imprisonment imposed by the Court of Appeal for murder. The appellant was found to have gone to the deceased's home and cut him to death with a pa.nga. 15 - In another similar case, Muhoozi & Another v. Ugandar Supreme Court Criminal Appeal No. 29 of 2Ol4; l2OL9l UGSC 26, the appellants were part of a group of assailants that broke into the deceased's home and cut him to death with a panga. The appellants were, upon conviction, sentenced to 3O years'imprisonment, and the sentence was upheld on appeal to the Court of Appeal. On further appeal, the Supreme Court upheld the sentence and noted that the sentence was appropriate and neither harsh nor manifestly excessive. 20 25

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Having reviewed the sentences imposed by the courts for similar offences, we find that the sentence imposed on the appellant fell within the sentencing range discernible from previously decided murder cases. The appellant in this case, with impunity, struck his own brother with

- 5 a panga on his neck causing him to suffer excessive bleeding which led to his death. The deceased endured a painful death and his father suffered intense emotional pain or grief. He lost one son to death and the other is in prison. We will therefore not disturb the sentence imposed by the trial judge and it is upheld. - 10 This appeal therefore substantially fails and the appellant will continue to serve the sentence of 23 years' imprisonment that was imposed by the trial court.

It is so ordered.

Dated and delivered at Mbale this 1ltt day of March 2025.

,

Irene Mulyagonja

JUSTICE <sup>F</sup>APPEAL (/\

Tibulya OF APPEAL

Moses lflazibwe Kawumi JUSTICE OF APPEAL