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Akech v Uganda (Criminal Appeal No. 457 of 2016)

Court of Appeal · [2019] UGCA 168 · 2019 Appeal Allowed ✦ AI-generated summary ↓ Download
Jurisdiction
Uganda
Case Type
Criminal appeal against sentence following re-sentencing in the High Court
Decision
Appeal against sentence allowed; original 25-year sentence set aside and substituted with 22 years and 1 month imprisonment from date of conviction.

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Holding

The Court of Appeal held that the re-sentencing Judge's sentence of 25 years imprisonment "in addition to time already spent in prison" was ambiguous, uncertain and illegal, since it failed to account for the period spent on remand as required by Article 23(8) of the Constitution. The Court set the sentence aside and, invoking section 11 of the Judicature Act, re-evaluated the aggravating and mitigating factors and the sentencing range in comparable murder cases (20–25 years). It found 25 years appropriate, then deducted the 2 years and 11 months spent on remand, imposing a fresh sentence of 22 years and 1 month from the date of conviction. Ground two was thereby overtaken.

Facts

On 10 November 2005 at about 8pm, PW4 left her two-year-old son at the doorstep of her house to fetch fire from a neighbour. She noticed the appellant standing in her own doorway about three metres away. On returning after five minutes, PW4 did not find the deceased and saw the appellant running out of the courtyard gate. A search proved futile. Shortly after 9pm, police accompanied the appellant into the courtyard, where PW6 found the body of the deceased in the appellant's house. The appellant was arrested. A post mortem revealed the child died of haemorrhagic shock secondary to severed neck vessels. The appellant was tried, convicted of murder and sentenced to death. Following the abolition of the mandatory death sentence in Attorney General v Susan Kigula, the file was remitted for mitigation and re-sentencing, where she was sentenced to 25 years imprisonment. She appealed against sentence only.

Issues

  1. Whether the re-sentencing Judge imposed an ambiguous and uncertain sentence.
  2. Whether the sentence of 25 years imprisonment was manifestly harsh and excessive.

Orders

  • Sentence of 25 years imprisonment imposed by the re-sentencing Judge set aside as ambiguous and illegal.
  • Fresh sentence of 22 years and 1 month imprisonment imposed, to run from the date of conviction (03/10/2008).
  • Appeal allowed in the stated terms.

Key headnotes

Sentencing — Ambiguity and Certainty of Sentence
A sentence expressed as a term of imprisonment "in addition to the time already spent in prison" without specifying or deducting the remand period is ambiguous, uncertain and illegal, and is liable to be set aside.
Sentencing — Article 23(8) — Deduction of Remand Period
A sentencing court must take into account and deduct the period a convict has spent in lawful custody on remand prior to conviction, as required by Article 23(8) of the Constitution; failure to do so renders the sentence illegal.
Sentencing — Appellate Power to Impose Fresh Sentence
Where an appellate court sets aside an illegal sentence, it may invoke section 11 of the Judicature Act to exercise the powers of the trial court and impose a fresh sentence it considers appropriate, having regard to aggravating and mitigating factors and the range of sentences in comparable cases.

Legislation cited (4)

  • Penal Code Act s.188
  • Penal Code Act s.189
  • Constitution of Uganda Article 23(8)
  • Judicature Act s.11

Cases cited (8)

  • Attorney General v Susan Kigula and 417 Others (Constitutional Application No. 3 of 2006)
  • Kamya Abdullah and 4 Others v Uganda (Supreme Court Criminal Appeal No. 24 of 2015)
  • Livingstone Kakooza v Uganda (Supreme Court Criminal Appeal No. 17 of 1993)
  • David Kasaija v Uganda (Criminal Appeal No. 128 of 2008)
  • Bogere Moses and Another v Uganda (Supreme Court Criminal Appeal No. 1 of 1997)
  • Mbunya Godfrey v Uganda (Supreme Court Criminal Appeal No. 4 of 2011)
  • Tumwesigye Anthony v Uganda (Criminal Appeal No. 46 of 2012)
  • Atiku Lino v Uganda (Criminal Appeal No. 41 of 2009)
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.