Wakilii

Kazungu Aluko v Uganda (Criminal Appeal No. 133 of 2021)

Court of Appeal · [2022] UGCA 79 · 2022 Appeal Allowed ✦ AI-generated summary ↓ Download
Jurisdiction
Uganda
Case Type
Second criminal appeal against sentence only, from a High Court decision affirming a Magistrate's conviction and sentence
Decision
Appeal against sentence allowed; original sentence set aside and appellant re-sentenced to 8 years on count 1 and 11 months on count 2, to run concurrently

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Holding

The Court of Appeal held that a ground touching on the legality of a sentence may be raised for the first time on a second appeal. The trial Magistrate had failed to take into account the period the appellant spent on remand, contrary to Article 23(8) of the Constitution, rendering the sentence illegal. The Court set aside the original 8-year sentence on the attempted murder count and re-sentenced the appellant, after considering mitigating and aggravating factors and the 22 days spent on remand, to 8 years' imprisonment on count 1 and 11 months on count 2, to run concurrently.

Facts

On 28 October 2017 at Namataba village, Kira Municipality, Wakiso district, the appellant, who was the victim's husband, poured acid on her in an attempt to cause her death. The victim had asked the appellant to leave the home so they could live separately. When she returned home around midnight with her supermarket attendant, they found no power. As she walked towards the house she noticed the appellant, and before she could ask what he wanted, she felt a liquid poured on her and screamed for help. The appellant was charged and convicted of attempted murder and doing grievous harm, and sentenced to 8 years' imprisonment on count 1 and 1 year on count 2. His first appeal to the High Court was dismissed, the conviction upheld and sentences not interfered with as he had not appealed against sentence. He then appealed to the Court of Appeal against sentence only, contending the sentence was illegal for failing to account for time spent on remand.

Issues

  1. Whether a new ground touching on the legality of a sentence may be raised for the first time on a second appeal.
  2. Whether the sentence was illegal because the trial court failed to take into account the period the appellant had spent on remand under Article 23(8) of the Constitution.

Orders

  • The illegal sentence is set aside.
  • Appellant re-sentenced to 8 years' imprisonment on count 1 (attempted murder).
  • Appellant sentenced to 11 months' imprisonment on count 2 (doing grievous harm).
  • Sentences to run concurrently.

Key headnotes

Criminal Appeals — New Grounds — Legality of Sentence Raised for First Time on Second Appeal
An appellate court may consider a new ground of appeal not raised in the lower court, even on a second appeal, where the ground touches on the legality of the trial or the orders made.
Sentencing — Remand Period — Article 23(8) Constitutional Command
Article 23(8) of the Constitution requires a sentencing court to take into account the period an accused has spent on remand; failure to do so renders the resulting sentence illegal and liable to be set aside.
Sentencing — Manner of Accounting for Remand — Not a Mathematical Exercise
Taking the remand period into account need not be an arithmetical exercise, but the sentencing court should clearly indicate the mitigating and aggravating factors considered, particularly the remand period.
Appellate Interference with Sentence — Wrong Principle or Manifest Excess
An appellate court will only alter a sentence imposed by the trial court if it acted on a wrong principle, overlooked a material factor, or the sentence is manifestly excessive in the circumstances.

Legislation cited (4)

  • Penal Code Act s.204(a)(b)
  • Domestic Violence Act 2010 s.4(2)
  • Constitution of Uganda Article 23(8)
  • Judicature Act s.11

Cases cited (6)

  • Alenyo Marks v Uganda (Supreme Court Criminal Appeal No. 8 of 2007)
  • Imere Deo v Uganda (Supreme Court Criminal Appeal No. 16 of 2015)
  • Rwabugande v Uganda (Supreme Court Criminal Appeal No. 25 of 2014)
  • Livingstone Kakooza v Uganda (Supreme Court Criminal Appeal No. 17 of 1993)
  • Abelle Asuman v Uganda (Supreme Court Criminal Appeal No. 66 of 2016)
  • Ogalo S/O Owoura v R (1954) 21 E.A.C.A. 270
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.