Wakilii

Okello Denis v Ugamda (Criminal Appeal No. 95 of 2016)

Court of Appeal · [2020] UGCA 25 · 2020 Appeal Partly Allowed — Sentence Reduced ✦ AI-generated summary ↓ Download
Jurisdiction
Uganda
Case Type
Criminal appeal against sentence only from High Court murder conviction
Decision
Sentence set aside for illegality and substituted with 24 years and 9 months imprisonment from the date of conviction

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Holding

The Court of Appeal held that, were it not for its illegality, a sentence of 30 years imprisonment for the murder, which was preceded by sexual abuse of a 14-year-old girl, was not harsh or excessive. However, the trial Judge stated the sentence was 'inclusive' of remand time, which implied she added rather than deducted the remand period, rendering the sentence illegal under Article 23(8) of the Constitution. The Court set aside the illegal sentence and re-sentenced the appellant afresh, again imposing 30 years but deducting 5 years and 3 months of detention, yielding 24 years and 9 months from the date of conviction.

Facts

On the night of 28 December 2006, the appellant and Onencan Moses picked up Anena Scovia, a 14-year-old girl, from Obiya West sub ward in Gulu. An argument arose in which Onencan accused the deceased of stealing his shoes and clothes. The deceased's body was later found along the Gulu-Juba road. A post mortem showed she had been sexually abused before being murdered, with internal and external injuries, and the cause of death was believed to be asphyxia/suffocation. The appellant and Onencan, both residents of Kati-Kati Village, were arrested and each accused the other. The case was repeatedly adjourned awaiting vaginal smear examination results. Onencan was released on a no case to answer. On 6 April 2016 the appellant was convicted of murder and sentenced to 30 years imprisonment. He appealed against sentence only.

Issues

  1. Whether the sentence of 30 years imprisonment imposed on the appellant for murder was harsh and excessive in the circumstances.
  2. Whether the trial Judge's sentence was illegal for failing to deduct the period spent on remand as required by Article 23(8) of the Constitution.

Orders

  • The illegal sentence of 30 years imprisonment is set aside.
  • The appellant is re-sentenced afresh to a substituted sentence of 30 years imprisonment.
  • A period of 5 years and 3 months spent in detention is deducted, leaving 24 years and 9 months imprisonment to run from 6 April 2016.

Key headnotes

Criminal Sentencing — Remand Period — Mandatory Deduction under Article 23(8)
A sentence expressed as being 'inclusive' of the period spent on remand is illegal where it implies the remand period was added to rather than subtracted from the term, because Article 23(8) of the Constitution mandatorily requires that time spent in lawful custody before completion of trial be taken into account by deduction.
Appellate Interference with Sentence — Grounds
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, the trial court ignored an important matter that ought to have been considered, or the sentence is wrong in principle.
Re-sentencing — Illegality — Court's Power under Section 11 of the Judicature Act
Where a sentence is set aside for illegality, an appellate court may, in exercise of its powers under section 11 of the Judicature Act, sentence the appellant afresh by reference to the prevailing circumstances of the case at the time of conviction.

Legislation cited (5)

  • 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(1)

Cases cited (11)

  • Turyamushanga Kyoma John v Uganda (Criminal Appeal No. 197 of 2013)
  • Rwabugande v Uganda (Criminal Appeal No. 25 of 2014)
  • Pandya v R [1957] EA 336
  • Henry Kifamunte v Uganda (Criminal Appeal No. 10 of 1997)
  • Bogere Moses v Uganda (Criminal Appeal No. 1 of 1997)
  • Livingstone Kakooza v Uganda (Criminal Appeal No. 17 of 1993)
  • Ogalo s/o Owoura v R [1954] 21 EACA 270
  • Kiwalabye Bernard v Uganda (Criminal Appeal No. 143 of 2001)
  • Attorney General v Susan Kigula and 417 Others (Constitutional Appeal No. 3 of 2006)
  • Ssemanda Christopher & Another v Uganda (Criminal Appeal No. 77 of 2010)
  • Kyarikunda Richard v Uganda (Criminal Appeal No. 296 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.