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Ndagano and Another v Uganda (Criminal Appeal 203 of 2012; Criminal Appeal 5 of 2018)

Court of Appeal · [2020] UGCA 2137 · 2020 Sentence Reduced ✦ AI-generated summary ↓ Download
Jurisdiction
Uganda
Case Type
Criminal appeal against sentence from High Court conviction for murder
Decision
Sentences set aside and substituted with reduced terms after deducting full remand period

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Holding

The Court of Appeal held that the trial judge erred by taking into account only one year of the appellants' pre-trial remand period, when the actual period was one year, two months and seventeen days. This rendered the sentences illegal, and the court set them aside. Exercising its powers under section 11 of the Judicature Act, the court re-sentenced the appellants, deducting the full remand period. After considering the sentencing range for murder and the mitigating factors, the first appellant was ordered to serve 22 years, 9 months and 13 days and the second appellant 20 years, 9 months and 13 days imprisonment.

Facts

The appellants were convicted of murder contrary to sections 188 and 189 of the Penal Code Act and sentenced by the High Court on 20th July 2012 to 40 years and 35 years imprisonment respectively. The deceased had been killed in a brutal manner, his neck deeply cut with a machete and his body buried in a shallow grave. In sentencing, the trial judge considered aggravating factors, particularly the brutal manner of killing, and mitigating factors, namely that both appellants were first offenders and relatively young, aged 27 and 37. The appellants had been taken into custody on 3rd May 2011 and convicted on 20th July 2012, a remand period of one year, two months and seventeen days. The trial judge took into account only one year of that period. The appellants appealed against sentence only.

Issues

  1. Whether the sentences of 40 years and 35 years imprisonment were illegal for failure to fully account for the pre-trial remand period.
  2. Whether the sentences imposed were harsh and manifestly excessive in the circumstances.

Orders

  • Sentences of 40 years and 35 years imprisonment set aside.
  • First appellant to serve 22 years, 9 months and 13 days imprisonment.
  • Second appellant to serve 20 years, 9 months and 13 days imprisonment.
  • Sentences to run from 20th July 2012, the date of conviction.

Key headnotes

Sentencing — Pre-Trial Remand Period — Constitutional Obligation to Account for Full Period
A sentencing court must take into account the entire period an accused spent on remand before conviction; failure to account for the full remand period renders the sentence illegal and liable to be set aside.
Sentencing — Appellate Interference — Principles Governing Variation of Trial Court Sentence
An appellate court will not interfere with a sentence imposed in the exercise of the trial court's discretion unless the sentence is manifestly excessive or so low as to amount to a miscarriage of justice, or the trial court ignored an important matter or the sentence is wrong in principle.
Sentencing — Appellate Re-Sentencing — Powers under Section 11 of the Judicature Act
Where a sentence is set aside as illegal, the appellate court may invoke its powers under section 11 of the Judicature Act to exercise the powers of the trial court and impose an appropriate sentence, having regard to the sentencing range established by precedent.

Legislation cited (4)

  • Penal Code Act (Cap 120) s.188
  • Penal Code Act (Cap 120) s.189
  • Judicature Act (Cap 13) s.11
  • Rules of the Court of Appeal Rule 30

Cases cited (12)

  • Bogere Moses and Another v Uganda (Criminal Appeal No. 1 of 1997)
  • Kifamunte Henry v Uganda (Criminal Appeal No. 10 of 1997)
  • Kiwalabye Bernard v Uganda (Criminal Appeal No. 143 of 2001)
  • Kyalimpa Edward v Uganda (Criminal Appeal No. 10 of 1995)
  • Ogalo s/o Owoura Vs R. (1954) 21 E.A.C.A. 126
  • R. Vs Mohamedali Jamal (1948) 15 E.A.C.A. 726
  • Livingstone Kakooza v Uganda (Criminal Appeal No. 17 of 1993)
  • Ogalo s/o Owoura Vs Republic [1954] 24 EA CA 220
  • Akbar Hussein Godi v Uganda (Criminal Appeal No. 3 of 2013)
  • Rwabugande Moses v Uganda (Criminal Appeal No. 25 of 2014)
  • Bandebaho Benon v Uganda (Criminal Appeal No. 319 of 2014)
  • Opio Daniel v Uganda (Criminal Appeal No. 32 of 2011)
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.