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Kakaire & 4 Ors v Uganda (Criminal Appeal No. 776 of 2014)

Court of Appeal · [2019] UGCA 199 · 2019 Sentence Reduced ✦ AI-generated summary ↓ Download
Jurisdiction
Uganda
Case Type
Criminal appeal against sentence from High Court re-sentencing following remission under Kigula
Decision
Sentence set aside and substituted with 20 years, 11 months and 3 weeks imprisonment on each count, running concurrently from the date of conviction

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Holding

The Court of Appeal held that the re-sentencing Judge erred in principle by relying on the appellant's misconduct in prison to impose a harsher sentence (40 years, served as 27) than his co-convicts (35 years), occasioning a miscarriage of justice. It was also irregular to deduct the post-conviction period in custody instead of the remand period required by Article 23(8) of the Constitution. The sentence was set aside. Exercising its powers under section 11 of the Judicature Act, the Court imposed 23 years on each count, less 2 years and 7 days spent on remand, resulting in 20 years, 11 months and 3 weeks, running concurrently from the date of conviction.

Facts

On 03/02/2001 the appellants robbed Lt. Makoko Umaru of household items and fired shots at him, leading to his death. They were arrested, charged, tried and convicted of aggravated robbery and murder, and sentenced to the then-mandatory death penalty. Following the Supreme Court decision in Attorney General v Susan Kigula abolishing the mandatory death sentence, the file was remitted to the High Court for re-sentencing. The re-sentencing Judge sentenced the 1st, 2nd, 3rd and 5th appellants to 21 years and 7 months, while the 4th appellant was sentenced to 27 years (from an initial 40 years), citing his poor conduct and bad behaviour in prison. The 4th appellant appealed against sentence, contending it was based on his prison behaviour and was harsher than his co-convicts. The other appellants had already served and been released.

Issues

  1. Whether the re-sentencing Judge erred in basing the sentence on the appellant's conduct in prison.
  2. Whether it was irregular for the sentencing Judge to take into account the post-conviction period spent in prison rather than the remand period under Article 23(8) of the Constitution.
  3. What appropriate sentence should be imposed.

Orders

  • Appeal against the 1st, 2nd, 3rd and 5th appellants dismissed as they had served their sentences and been released.
  • Leave to appeal against sentence granted to the 4th appellant.
  • Sentence of 27 years imprisonment set aside.
  • Appellant sentenced to 20 years, 11 months and 3 weeks imprisonment on each count of murder and robbery, running concurrently from 13/02/2003.

Key headnotes

Sentencing — Re-sentencing — Reliance on Post-Conviction Prison Conduct
A sentencing court errs in principle where it relies on a convict's misconduct in prison to impose a harsher sentence than that imposed on co-convicts, thereby occasioning a miscarriage of justice and justifying appellate interference.
Sentencing — Deduction of Period in Custody — Article 23(8) of the Constitution
Under Article 23(8) of the Constitution, a court must deduct the period a convict spent on remand prior to conviction; it is irregular to deduct a post-conviction period spent in prison, since the substituted sentence runs from the date of conviction.
Sentencing — Appellate Review of Sentence — Wrong Principle and Manifest Excess
An appellate court will interfere with a trial court's sentencing discretion where the judge acted on a wrong principle, overlooked a material factor, or where the sentence is harsh and manifestly excessive in the circumstances.
Sentencing — Powers of Court of Appeal — Section 11 Judicature Act
Where a sentence is set aside, the Court of Appeal may invoke section 11 of the Judicature Act to exercise the powers of the trial court and impose an appropriate sentence, taking into account the sentencing range, aggravating and mitigating factors.

Legislation cited (7)

  • Penal Code Act s.285
  • Penal Code Act s.188
  • Penal Code Act s.189
  • Constitution of Uganda Article 23(8)
  • Judicature Act s.11
  • Judicature (Court of Appeal Rules) Directions Rule 30
  • Judicature (Court of Appeal Rules) Directions Rule 73(6)

Cases cited (7)

  • Attorney General v Susan Kigula and 417 Others (Constitutional Appeal No. 3 of 2006)
  • Bandebeho v Uganda (Criminal Appeal No. 319 of 2014)
  • Baguma Fred v Uganda (Criminal Appeal No. 7 of 2004)
  • Kizito Senkula v Uganda (Criminal Appeal No. 24 of 2001)
  • James -vs- R (1950) 18 EACA 147
  • Abaasa Johnson and Another v Uganda (Criminal Appeal No. 33 of 2010)
  • Tumusiime Obed and Another v Uganda (Criminal Appeal No. 149 of 2010)
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.