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Kafero v Uganda (Criminal Appeal No. 523 of 2014)

Court of Appeal · [2019] UGCA 2083 · 2019 Sentence Reduced ✦ AI-generated summary ↓ Download
Jurisdiction
Uganda
Case Type
Criminal appeal against sentence only, following re-sentencing by the High Court
Decision
Appeal against sentence allowed; illegal sentence set aside and substituted with 25 years imprisonment, leaving 21 years, 7 months and 9 days to be served from 06/06/2005.

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Holding

The Court of Appeal held that a sentencing court cannot deny a convict remission, as remission under sections 84 and 85 of the Prisons Act is neither given nor taken away by courts during sentencing. The re-sentencing Judge's order that the sentence be served 'without remission' was therefore illegal. The Court further held that the period spent on death row awaiting execution cannot be deducted as remand time, since only time in lawful custody before conviction qualifies. Setting aside the illegal sentence and invoking section 11 of the Judicature Act, the Court substituted a sentence of 25 years imprisonment, less 3 years, 4 months and 21 days on remand, leaving 21 years, 7 months and 9 days from the date of conviction.

Facts

The deceased, Mukabana Rose, and the appellant were village mates at Kyanika 'B' Zone, Rakai District. On the night of 16/01/2002, an unknown person entered the deceased's grass-thatched hut and strangled her; her body was discovered the next morning. A belt fastening metal found on the deceased's bed was suspected to belong to the appellant, whose belt lacked its fastening metal, and which he could not explain. He was arrested and a post mortem found death resulted from suffocation after strangulation. The appellant was indicted, tried and convicted of murder on 06/06/2005 and sentenced to the then-mandatory death penalty. Following Attorney General v Susan Kigula, the file was remitted to the High Court for re-sentencing, where on 22/11/2013 the appellant was re-sentenced to 29 years imprisonment 'without remission', with 11 years deducted as remand. The appellant appealed against sentence only, arguing the sentence was illegal.

Issues

  1. Whether the re-sentencing Judge imposed an illegal sentence by excluding the appellant's right to remission under the Prisons Act.
  2. Whether the re-sentencing Judge erred in deducting 11 years as remand time when the appellant spent only about 3 years on remand and the remainder on death row.
  3. What sentence is appropriate in the circumstances.

Orders

  • Sentence of 29 years imprisonment set aside for being illegal.
  • Appellant sentenced to 25 years imprisonment, less the period of 3 years, 4 months and 21 days spent in lawful custody.
  • Net sentence of 21 years, 7 months and 9 days imprisonment to be served from the date of conviction, 06/06/2005.

Key headnotes

Sentencing — Remission — Court Cannot Deny Statutory Remission
Remission under sections 84 and 85 of the Prisons Act is neither given nor taken away by courts during sentencing; a sentencing court has no power to order that a custodial sentence be served without remission, and such an order is illegal.
Sentencing — Deduction of Time on Remand — Period on Death Row
Only the period spent in lawful custody before conviction may be deducted from a sentence; time spent on death row awaiting execution after conviction cannot be treated as remand time, since sentences run from the date of conviction.
Sentencing — Appellate Interference with Sentence
An appellate court may interfere with a sentence where it is illegal, manifestly excessive or so low as to amount to a miscarriage of justice, or where the court ignored an important matter or the sentence is wrong in principle.
Sentencing — Re-sentencing Power of Court of Appeal — Judicature Act s.11
Upon setting aside an illegal sentence, the Court of Appeal may invoke section 11 of the Judicature Act, which confers the jurisdiction of the trial court, to impose an appropriate sentence of its own having regard to mitigating and aggravating factors and the sentencing range in comparable cases.

Legislation cited (9)

  • Penal Code Act s.188
  • Penal Code Act s.189
  • Trial on Indictments Act s.132(1)(b)
  • Judicature Act s.11
  • Prisons Act s.84
  • Prisons Act s.85
  • Constitution (Sentencing Guidelines for Courts of Judicature) (Practice) Directions, 2013 Guideline 17
  • Constitution (Sentencing Guidelines for Courts of Judicature) (Practice) Directions, 2013 Guideline 20(b)
  • Judicature (Court of Appeal Rules) Directions Rule 30

Cases cited (7)

  • Attorney General v Susan Kigula and 417 Others (Constitutional Appeal No. 03 of 2006)
  • Wamutabaniwe Jamil v Uganda (Criminal Appeal No. 74 of 2007)
  • Narsensio Begumisa v Eric Tibebaga (Civil Appeal No. 17 of 2002)
  • Kiwalabye Bernard v Uganda (Criminal Appeal No. 143 of 2001)
  • Latif Buulo v Uganda (Criminal Appeal No. 0323 of 2014)
  • Mbunya Godfrey v Uganda (Criminal Appeal No. 004 of 2011)
  • Tumwesigye Anthony v Uganda (Criminal Appeal No. 046 of 2012)
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.