Wakilii

Kajura & 2 Others v Uganda (Criminal Appeal No. 136 of 2009)

Court of Appeal · [2014] UGCA 37 · 2014 Appeal Partly Allowed ✦ AI-generated summary ↓ Download
Jurisdiction
Uganda
Case Type
Criminal appeal from High Court conviction and sentence for aggravated robbery; appeal against conviction abandoned, appeal pursued on sentence only
Decision
Appeal against conviction dismissed; sentences of first two appellants varied to run from conviction accounting for remand; third appellant ordered immediately released

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Cited — treatment unverified cited in 5 (treatment unverified) Derived from citing cases in the Wakilii corpus — not an assertion that this case is good law.

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Holding

The Court of Appeal held that failure to take into account the remand period under Article 23(8) of the Constitution renders a sentence illegal, and that a court cannot consider an unproven fact such as the rampancy of an offence when sentencing. The appeal against conviction was dismissed as abandoned. The sentences against the first two appellants were varied to a ten-year term running from conviction, accounting for the over-five-year remand period. The third appellant, who may have been a minor at the time of the offence and was wrongly sentenced as an adult instead of by the Family and Children Court under section 104 of the Children Act, was ordered immediately released.

Facts

On 27 December 2003 at Mbaale village, Kyenjojo District, the appellants and a co-accused (since deceased) robbed Rwamayaga Wycliff of cash of shs.250,000 and a motorcycle worth shs.1,500,000, using pangas and causing him grievous harm. The victim was seriously injured and hospitalised. The appellants were tried by the High Court at Fort Portal, convicted of aggravated robbery, and each sentenced to ten years' imprisonment. They had spent more than five years on remand. The trial Judge did not take the remand period into account when sentencing, instead relying on the rampancy of aggravated robbery in the district, a fact not supported by evidence. The third appellant stated on oath he was aged 22 at trial, raising the possibility he was below eighteen at the time of the offence. The appellants abandoned their appeal against conviction and pursued only the appeal against sentence.

Issues

  1. Whether the trial Judge erred in failing to take into account the period the appellants had spent on remand contrary to Article 23(8) of the Constitution.
  2. Whether the sentence of ten years' imprisonment was harsh and excessive in the circumstances.
  3. Whether the third appellant, who may have been a minor at the time of the offence, was properly sentenced as an adult by the High Court instead of the Family and Children Court.

Orders

  • The appeal against conviction is dismissed by reason of its having been abandoned by the appellants with no objection from Counsel for the Respondent.
  • The appeal against sentence by A.1 Kajura Kiiza and A.2 Mugabe Edward is allowed to the extent that the trial Judge did not consider the period spent on remand; a term of imprisonment of ten years is imposed to run from the time of their conviction.
  • The appeal against sentence by A. Museveni George is allowed by reason of its having been passed by the High Court instead of the Family and Children Court under s.104 of the Children Act; his immediate release is ordered.

Key headnotes

Sentencing — Article 23(8) — Mandatory Consideration of Remand Period
Where a sentencing court fails to comply with Article 23(8) of the Constitution by not taking into account the period spent in lawful custody before completion of trial, the resulting sentence is illegal.
Sentencing — Consideration of Remand Period — Method
Taking the remand period into account is mandatory and must be noted in the judgment, but it need not be done mathematically by subtracting that period from the sentence; it must be considered alongside other relevant factors before the term is pronounced.
Sentencing — Reliance on Unproven Facts
A sentencing court may not take into consideration a factor such as the rampancy of an offence in the district where no evidence has been adduced to prove that fact.
Appellate Interference with Sentence — Principles
An appellate court will not alter a sentence merely because it would have passed a different one; it interferes only where the trial court acted on a wrong principle, overlooked a material factor, or where the sentence is manifestly excessive in the circumstances.
Sentencing of Minors — Jurisdiction of Family and Children Court
An accused who may have been below eighteen at the time of the offence must have his age ascertained and, where applicable, be sentenced by the Family and Children Court under section 104 of the Children Act rather than as an adult by the High Court.

Legislation cited (5)

  • Penal Code Act s.285
  • Penal Code Act s.286(2)
  • Constitution of Uganda 1995 article 23(8)
  • Trial on Indictments Act s.98
  • Children Act s.104

Cases cited (4)

  • Katende Ahamad v Uganda (Criminal Appeal No. 6 of 2004)
  • Bukenya Joseph v Uganda (Criminal Appeal No. 17 of 2010)
  • Ogalo s/o Owoura v R (1954) 21 EACA 270
  • James V. R, (1950) EACA 147
Source: this page presents Wakilii’s issue analysis and metadata for a publicly reported Ugandan judgment. Any AI-generated summary is marked as such. Judgment text is sourced from the Uganda Legal Information Institute (ulii.org). Wakilii is not affiliated with ULII.