Wasswa v Uganda (Criminal Appeal 102 of 2017) [2023] UGCA 181 (19 July 2023)

# THE REPUBLIC OF UGANDA

# IN THE COURT OF APPEAL OF UGANDA HOLDEN AT MASAKA CRIMINAL APPEAL NO. 102 OF 2017

(Coram: Buteera, DCJ; Bamugemereire, Luswata, JJA)

WASSWA STEPHEN :::::::::::::::::::::::::::::::::::: $\mathsf{S}$

#### **VERSUS**

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

(An appeal against the decision of John Eudes Keitirima J, sitting in the High Court Criminal Session Case No. 179 of 2016 Dated 17<sup>th</sup> March 2017 at Masaka)

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# **JUDGMENT OF THE COURT**

### **Introduction**

The appellant was convicted of the offence of Kidnap with Intent to Murder contrary to sections 240 and 243 of the Penal Code Act, Cap 120, 15 and sentenced to 45 years' imprisonment. It is alleged that on the 19<sup>th</sup> day of July 2008 at Namiyaga Village in Rakai district by force, or fraud, the appellant kidnapped, took away or detained RN, a, girl-child aged two years, with intent to murder her or to dispose of the body of the said

RN as to put her in danger of being murdered; with knowledge that she 20 would probably be murdered.

#### **Background**

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The facts as can be discerned from the trial record are that in February 2008 the appellant developed a misunderstanding with the complainants, the victim's parents. The appellant accused the victim's father and mother of poisoning his chicken. The appellant issued threats to them


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promising to visit on them a calamity they would never forget. On the 19th d\*y of July 2008, the victim, RN, went with her siblings to fetch firewood in a nearby garden. RN's siblings returned without her. The mother asked the siblings about her whereabouts, and they responded 5 that she had remained behind to pick two rnaize cobs. When RI\ did not

return, the family mounted a search for her, but she was not to be found.

The parents reported her disappearance to the police. Another search was mounted but it yielded no results. It is alleged that shortly after the victim went missing, the appellant, who apart from rearing chicken, also operated a shrine in Rakai district, disappeared from the village.

A year and a half later, on the l3thof December 2009, a ogood Samaritan', Agnes Nankya (PW3) and an unknown herdsman heard a child making 15 squeaky noises in the bush. When they checked they found that RN had heen tied up in a sisal sack and dumped in a bush in Njagala Kasaali. At the time she was found, RN had half a tongue, could hardly speak and she visibly had 14 cuts on her stomach area. RN was taken to hospital for medical examination and while at hospital under the care of Agnes ZO Nankya, the appellant visited and inquired after the victim. He was inquisitive to know where the victim had been found. He conducted <sup>a</sup> check on the victim's body. It was alleged that the appellant upon being told that the child was found dumped in a swamp, harassed Nankya and blamed her for rescuing RN. The appellant was also desirous of picking

<sup>25</sup>the victim's nails and hair. W M LL\/- <sup>2</sup>

Radio announcements of a missing child were made. The mother of RN proceeded to the hospital and confirmed that the found child was her daughter, RN. Agnes, the good Samaritan, informed the mother about the man who had come asking for the victim's nails and hair. Upon description of the man by Agnes, the mother related the description with the appellant. The mother then reported to police and described the appellant who \Mas arrested. Agnes Nankya confirmed that this was the very man who visited the hospital inquiring about the victim. The appellant was at first arraigned before the Magistrate's court of Rakai and granted bail. He jumped bail but was subsequently arrested in Mukono district on ls'h January 2016. As a result of the injuries inflicted on the victim by the appellant, she suffered severe nervous and brain damage and has spasticity and paraplegia. To-date she remains contorted and immobile. The appellant was committed to the High Court. He was tried and convicted of the offence of Kidnap with Intent to Murder and sentenced to 44 years imprisonment. Dissatisfied with the said sentence, the appellant sought leave of court to appeal against sentence only on the following ground: -

# 20 Ground of Appeal

That the learned trial Judge erred in law and faet when he convicted the appellant to 44 years imprisonment, a punishment which was manifestly harsh and excessive in the eireumstances.

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#### Representation

At the hearing of the appeal the appellant was represented by Mr. Andrew Tusingwire on state brief, while the respondent was represented

5 by Ms. Immaculate Angutoko, a Chief State Attorney in the Office of the Director of Public Prosecutions. The appellant made an in-person appearance in court. The victim appeared via video link from Kyampisi Child Care Ministries in Kayunga District.

The child is in the care of Kyampisi children's home. We were able to perceive her distorted frame. We could hear her mumble sounds. However, we could not make out what she was uttering. 10

Counsel for the appellant sought leave of this court to appeal against sentence only to which the respondent did not object. Court granted leave for the appellant to appeal against sentence only. Counsel for the respondent filed a Notice of cross appeal on 2"d June 2023 seeking the

enhancement of sentence to Life Imprisonment. All these applications were allowed, and thereafter, the appeal proceeded. 15

# The Appellant's Case

ZO Counsel for the appellant submitted that the Court of Appeal can lawfully alter, increase or decrease a sentence under section 34 (2> of the Criminal Procedure Code Act Cup 116.

Counsel submitted that the Court of Appeal will not interfere with <sup>a</sup> sentence of the trial court unless the sentence is illegal or based on <sup>a</sup> 25 wrong principle or the court has overlooked a material factor or where the


sentence is manifestly excessive or so low as to amount to a miscarriage of justice. She relied on Livingstone Kakoozav Uganda SCCA No. 17 of 1993.

5 Counsel contended that the sentence of 44 years' imprisonment imposed on the appellant was manifestly excessive and harsh thereby occasioning a miscarriage of justice. Counsel referred to the sentencing guidelines in paragraph 19 (2), which enjoins a sentencing court in offences whose punishment is to suffer death to consider the aggravating and mitigating factors in order to determine an appropriate sentence. 10

It was counsel's further contention that this court is enjoined to ensure consistency while sentencing in cases with similar facts. Counsel cited Naziwa v Uganda CACA No. 35 of 2014 where this court confirmed the lower court sentence of 1B years'imprisonment for the appellant who had kidnapped a 3 months' old baby. He also referred to Mubiru Yasin v Uganda CACA Nlo. 34 of 2020 where the appellant was sentenced to <sup>27</sup> years and 9 months' imprisonment for kidnap with intent to secure <sup>a</sup> ransom and this court confirmed the sentence. 15

It was counsel's submission that the appellant was 6t years old at the time of the hearing and that the trial court ought to have considered his advanced age during sentencirg.

Counsel prayed that the sentence of 44 years' imprisonment be reduced to

25 l5 years' imprisonment.

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# The Respondent's Case

Counsel for the respondent contended that sentencing remains the 5 discretion of the trial court and that an appellate court can only interfere with such sentence if it is evident that the trial court acted on a wrong principle or overlooked some material fact or if the sentence is manifestly harsh or illegal. She referred to Kiwalabye Bernard v Uganda SCCA No. 143 of 2001. It was counsel for the respondent's submission that the trial

- L0 Judge took into consideration both the mitigating and aggravating factors as advanced by both parties as well as the period spent on remand. She contended that the sentence meted out by the trial Judge was neither illegal nor excessive. - Counsel instead cross appealed the sentence of 44 years' imprisonment 15 under section 34 (2) (h) of the Criminal procedure Code Act, section 132 (f) (e) of the Trial on Indictments Act, section ll of the Judieature Act and rule 2 (2) & 32 (f) of the Judicature Court of Appeal Rules and Direetion. She invited the Court of Appeal to increase or enhance the sentence to Life imprisonment.

T" justify an enhancement, Counsel argued that the circumstances of this case called for a more severe sentence. She contended that the offence of kidnap or detaining with intent to murder pursuant to secti on 243 of the Penal Code Act attracts a maximum sentence of death. Counsel argued that upon kidnapping the infant, she was subj ected to severe abuse including dismemberment of her tongue and private parts and other

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physical abuse which left her maimed for life. In counsel's view, Life imprisonment was a more appropriate sentence than what had been meted out by the trial court. Counsel argued that the offence was committed against a vulnerable child, then aged one and half years old, 5 who was helpless at the time. Further, that the offence involved gratuitous degradation of the victim, and that the appellant for no justifiable reason kidnapped the innocent child and subjected her to serious torture as per medical report Exh Pl and Exh P3.

Counsel added that the victim's tongue was cut off, her teeth were 10 removed, there were several cuts in the stomach, her fingers and feet were also cut, the head was very soft as if she had heen hit, her labia minora had been cut, there was spasticity in all limbs, she could neither sit nor move, she suffered poor posture, she cannot not chew food neither can she feed herself. She can neither walk, roll nor turn.

15 It \,vas counsel's contention that there was an attempt to conceal the evidence as the victim was wrapped in a sack covered by u basket over her head in the hope that she would suffocate to death.

Counsel further submitted that cases of Kidnap with intent to Murder which had elements of child sacrifice by traditional healers were rampant. According to the lJganda Police Annual Crime Report 2022 available on the IJganda Police Force website www.upf.go.ug such cases were on the rise. Counsel reported that 243 & 32L cases of Kidnap/abduction were reported in 2022 and 202L and , respectively; greater Masaka had 20 register ed 672child related offences. 25

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It. was counsel's submission that it is settled law that for as long as the proper procedure is followed before enhancing the sentence, the Court of Appeal or any other appellate court has the power to vary any sentence imposed by the lower court by reducing or increasing it pursuant to section 11 of the Judicature Act. She relied on Mugasa Joseph v Uganda SCCA No. 10 of 2010, Busiku Thomas v Uganda SCCA No. 33 of 2010 & Kwamusi Jacoh v Uganda SCCA No. 22 of 2014. Counsel submitted that the respondent had duly filed a Notice of Cross Appeal on 2"d June 2023 to serve as awareness to the appellant.

Counsel contended that a sentence of imprisonment for life would be consistent with sentences meted by and upheld by this honorable court and Supreme Court in similar cases.

She referred to Rwalinda John v Uganda SCCA NO. lf3 of 2012 in which 15 the appellant was convicted on an alternate count of Kidnap with Intent to Murder and sentenced to life imprisonment which was upheld by the Court of Appeal and the Supreme Court.

Counsel further cited Kato Kajubi v Uganda SCCA No. 20 of 2014 where the appellant was convicted of the offence murder of a child for ritual

20 purposes and sentenced to life imprisonment and the Supreme Court upheld the sentence even though the appellant \^/as of advanced age. Counsel invited us to invoke our inherent powers to enhance the sentence in this case from 44 years' imprisonment to life imprisonment.

 ## Consideration of the Appeal

The appellant in this case is appealing against sentence only. We have carefully considered the submissions of Counsel, the record and authorities availed to us. We are alive to the duty of this court as a first appellate court. Ours is to reappraise all the material that was made available to the trial judge and come up with our own inferences of law and fact. (See Rule 30 of the Judicature (Court of Appeal Rules) Directions S. I 13-10 and Kifamunte Henry v Uganda SCCA No. l0 of t9g7).

We are also cognisant of the fact that we cannot interfere with the sentence imposed by the trial court which exercised its discretion unless the sentence is illegal or is based on a wrong principle or the court has overlooked a material factor or where the sentence is manifestly excessive or so low as to amount to a miscarriage of justice. (See Kamya fohnson Wavamuno v Uganda SCCA No. 16 of 2000 and Livingstone Kakooza v Uganda SCCA No. 17 of 1993).

- In the instant appeal, the appellant contended that the sentence of <sup>44</sup> years' imprisonment was harsh and excessive. On the other hand, the respondent argued that the sentence of 44 years' imprisonment was rather lenient in the circumstances of this case, and she urged this court to enhance the same to life imprisonment. 20 - It is trite that the Director of Public Prosecutions may, by leave of court, cross appeal against sentence. However, rule 2 (2), rule 32 (f) of the rules 25


of this court, section ll of the Judicature Act and seetion f32(f ) (e) of the Trial on Indictments Act empower this court to exercise its inherent powers in the case of an appeal against the sentence alone, confirm or vary the sentence; by way of enhancement.

In Mugasa Joseph v Uganda (supra) the Supreme Court adopted the procedure for enhancement of a sentence on appeal, which was laid down by the Kenyan Court of Appeal in JJW v Republic Criminal Appeal No. ll of 20ll [20f 3] KLR where t]re court observed that;

- 10 oo... The court in enhancing the sentence already awarded rnust be a,ware that its action in, so doin,g may haae serious effects on the appellartt. Because of such a situation, it is a, requirent.ent that the appellant be made awa,re before the hearing or at the cotn,nlencent.ent of the hearirtg of his appea,l that the sentence is - 15 likely to be enhanced. Often tint,es, this information is conaeyed by prosecution filin,g a cross-appeal in, u:hich it seeks enhantcerrr.ent of the sentence and that cross- appeal is seraed upon the appellant in good tirne to enable him, prepare for that eaentuality. The second way of conaeying that information is by court usarning the - 20 appellant or informing the appellant that if his appeal does not succeed on, conaiction, the sentence may be enhanced or if the appeal is on, serutence only by warning him that he risks enhanced senten,ce at the end of the hearing."

ln Busiku v Uganda SCCA No. 33 of 20ll the Supreme Court noted thus;

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"If the Court of Appeal has powers under S. 132 (f ) (.) to eonfirm or vary a sentence after hearing an appellant we find no rational basis why DPP should not ask for enhancement when the DPP replies to the appellant's arguments during the hearing of an appeal against sentence provided the DPP notified Court and the appellant in advance before the hearing d"y.

Further, in Sammy Omhoke & Another v Republic [20f9] eKLR court noted that;

- ooln the instant appeal, there was no cross-appeal by the prosecution for enhancement of sentenee before the High Court nor was there a warning to the appellants hy court that the sentenee meted upon then (sic) eould be enhaneedl and there was no notiee of enhancement. Guided by the judicial pronouncements of this Court above, we find that the learned judge erred in enhancing the sentence meted out on the appellants. In the absence of a crossappeal and notiee and or warning the judge had no jurisdietion to enhance the sentence." 10 15 - 20 Applying the above principles to the present case? counsel for the respondent applied for leave of the court to appeal against sentence with a view to having it enhanced. Counsel drew the attention of the court to the earlier notice sent out to the appellants in an application filed vide <sup>a</sup> notice of cross appeal. She submitted that the cross-appeal had been 25 served on the Appellant on the 2"d of June 2023. Counsel applied to have

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the sentence of 44 years' imprisonment enhanced to a sentence of life imprisonment.

Counsel for the appellant in response to the respondent's arguments on 5 enhancement of sentence urged the court to rely on the submissions already filed regarding the harshness and excessiveness of the sentence. The court stood over the matter to allow counsel for the appellant consult with the appellant and inform him that there was a cross appeal against the sentence by the respondent who sought to enhance the sentence to life 10 imprisonment.

After consultation with the appellant regarding the cross appeal on enhancement of sentence, counsel for the appellant informed the court that the appellant maintained his earlier position that the sentence was

15 harsh and excessive. Counsel submitted that the condition of the child was considered during sentencing and therefore, the cross appeal should be dismissed on that ground.

20 This court formed the view that counsel for the appellant had prior notice of the application for enhancement of sentence. This court granted time to the appellant to be notified. Thereafter we found that there was due notice granted and we allowed the application to appeal for the enhancement of sentence.

From the above bl room as regards ow by blow account of what. transpired inside the court the respondent's application for enhancement of 25

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sentence? it is clear that the proper procedure on enhancement of sentence as laid out in the authorities earlier cited was followed.

5 We now proceed to consider the appeal against the excessiveness of sentence uis a uiz the cross-appeal on enhancement of the said sentence. Counsel for the appellant relied on the principles of consistency in sentencing to fault the trial Judge for passing an excessive sentenc e of 44 years' imprisonment. He cited authorities which we shall not replicate as we have already referred to them above in his submissions.

On the other hand, counsel for the respondent cited authorities where determinate prison terms were enhanced to Life imprisonment and urged us to rely on the same. 10

We have had the opportunity to reappraise the sentence passed by the learned Trial Judge in his judgment when he stated that;

ool haae heard both the Aggraaating and mitigating factors. The actions of the conaict were heinous to say the least. He ruined the life of a young girl who u)as so tender and innocent. The aictim u:ill neaer be the sa,rn,e again. I haae considered the period the conaict has spent on, rerland. I u:ill now sentence him to 45 (forty fiae years in prisoru) but since he has spent on,e year on, reuland he u:ill serae 20

- 44 years imprisonment. The conuict has a right of appea,l against the conaiction of sentet,ce." - We are cogntzant. of the fact that there is need for parity in sentencirg. (See Livingstone Kakooza v Uganda SCCA No. 17 of 1993). 25

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However, according to seetion 243 of the Penal Code Act C"p 120, the maximum sentence for the offence of kidnapping with the intent to murder, is death.

5 In Rwalinda John v Uganda (supra) the appellant was convicted of Kidnap with intent to murder and sentenced to Life imprisonment. This court deemed the sentence neither illegal nor irregular and specifically stated that the facts of the case justified such a sentence.

On further appeal to the Supreme Court, it was held that the sentence of 10 life imprisonment was not harsh or excessive and it was upheld much as the appellant was 67 years at the time of sentencirg.

We noted earlier that we were able to see via video link, the current condition of the child. She cannot move and cannot talk. She has <sup>a</sup> 15 visibly contorted frame. It is hard to imagine that this was a normal twoyear-old child living a normal life, before this incident. From the evidence, this court found that the victim's tongue was severed, her teeth were yanked out, there were several cuts in the stomach. Her fingers and feet were also maimed. Her skull had become as soft as that of a new 20 borne. Her labia minora had been mutilated. There was spasticity in all limhs. She had suffered contortion of the torso and has become <sup>a</sup> paraplegic who can neither walk, nor? talk, or sit or even move. She has lost the ability to chew or feed herself and can neither roll nor turn.

Having found that the proper procedure for enhancement of sentence was 25 followed in this case, we are of the view that given the peculiar circumstances of this case to wit; prior to being kidnapped the victim was

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a normal two-year-old infant who could even fetch firewood with older siblings far from home; and that after the kidnap, she was maimed for life as a result of the appellant's gruesome acts; there was a case made out for enhancement of sentence.

- $\mathsf{S}$ We find that this was a good case for a sentence of 44 years' imprisonment to be enhanced in material particulars. As a result, we allow the respondent's application to enhance the sentence from 44 years' imprisonment to Life Imprisonment by invoking this court's powers under section 11 of the Judicature Act and section 132 of the Trial on - $10$ **Indictments Act.**

Consequently, the appellant shall serve a sentence of life imprisonment.

The appeal against sentence therefore fails.

The cross–appeal succeeds.

## We so order

Dated at Kampala this......day of.................................... 2023

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**Richard Buteera Deputy Chief Justice** $\mathsf{S}$

**Catherine Bamugemereire** $10$ **Justice of Appeal**

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Eva.k Luswata **Justice of Appeal**

$19/07/0023$ present à lué sur set certains<br>membre servers 7 anselent $\frac{1}{\sqrt{2}}$ $07/1003$

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