Wakilii

Dembere v Uganda (Criminal Appeal No. 470 of 2015)

Court of Appeal · [2023] UGCA 21 · 2023 Appeal Allowed — Sentence Reduced ✦ AI-generated summary ↓ Download
Jurisdiction
Uganda
Case Type
Criminal appeal against sentence from High Court conviction for murder
Decision
Sentence of life imprisonment set aside and substituted with 15 years and ten months' imprisonment effective from 4 March 2015

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Cited — treatment unverified cited in 1 (treatment unverified) Derived from citing cases in the Wakilii corpus — not an assertion that this case is good law.

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Holding

The Court of Appeal considered whether the trial judge erred in imposing life imprisonment on an elderly appellant convicted of murder. The Court reaffirmed that an appellate court will not interfere with a sentencing judge's discretion unless the sentence is illegal, manifestly excessive, or made on a wrong principle. While life imprisonment was a lawful sentence and the appellant's advanced age (70 at the time of offence) was not mitigating since he still committed a grave murder, the Court held that consistency with precedent and the appellant's lack of prior convictions and frail health warranted discounting the sentence. It set aside life imprisonment and substituted a term of 19 years and six months, less time on remand.

Facts

The appellant was charged with murder contrary to sections 188 and 189 of the Penal Code Act. On 15 June 2011 at Tirinyi trading centre, the appellant approached the deceased, Kirya John, while he was painting the roof of a nearby building, stabbed him and cut his intestines, causing death from shock due to bleeding. The offence occurred in broad daylight. The appellant immediately reported himself to a nearby police post, presenting the murder weapon (a knife) and stating he had stabbed a person. He was arrested the same day. At trial he was found to be aged about 70 years. He was convicted of murder and sentenced to life imprisonment on 4 March 2015, having spent about three years and eight months on remand. The appellant appealed against sentence only. By the time of the appeal hearing he was about 84 years old, frail, sickly and had hearing difficulties.

Issues

  1. Whether the learned trial judge erred in law and fact when he sentenced the appellant to a harsh and manifestly excessive sentence of life imprisonment for murder.

Orders

  • Appeal against sentence allowed.
  • Sentence of life imprisonment set aside.
  • Appellant sentenced to 19 years and six months' imprisonment, less three years and eight months spent on remand.
  • Appellant to serve 15 years and ten months' imprisonment with effect from 4th March 2015.

Key headnotes

Sentencing — Appellate Interference — Discretion of Trial Judge
An appellate court will not interfere with the sentencing discretion of a trial judge unless the sentence is illegal, the judge acted on a wrong principle or overlooked a material factor, or the sentence is manifestly so excessive as to amount to an injustice; it is not sufficient that the appellate court might have exercised its discretion differently.
Sentencing — Life Imprisonment — Meaning and Remission
Life imprisonment means imprisonment for the natural life of the convict, though the actual period may be reduced by remission earned; under section 86(3) of the Prisons Act 2006 such a sentence is deemed to be 20 years for purposes of earning remission, and remission is a statutory right that cannot be removed by the court.
Sentencing — Mitigation — Post-Conviction Reformation and Advanced Age
Post-conviction reformation while in custody is not a material factor in mitigation, as sentence must be assessed on factors available to the sentencing judge; advanced age cannot be a mitigating factor where the convict committed a grave offence at that advanced age.
Sentencing — Consistency — Precedent in Comparable Murder Cases
Consistency in sentencing requires a court to consider precedents where, in similar circumstances, life imprisonment has been discounted in favour of a fixed-term custodial sentence; failure to consider such precedents may justify appellate interference notwithstanding that the trial sentence was lawful.
Sentencing — Deduction of Remand Period — Indeterminate Sentences
Because life imprisonment is an indeterminate sentence dependent on the convict's remaining lifespan, the period spent on remand cannot be deducted from it under article 23(8) of the Constitution; the deemed 20-year term commences from the date of sentence.

Legislation cited (6)

  • Penal Code Act s.188
  • Penal Code Act s.189
  • Judicature Act s.11
  • Prisons Act 2006 s.86(3)
  • Prisons Act Cap 304 s.47 (repealed)
  • Constitution of Uganda article 23(8)

Cases cited (19)

  • John Kasimbazi and Others v Uganda (Criminal Appeal No. 167 of 2013)
  • Magata Ramadhan Vs Uganda, Supreme Court Criminal Appeal No 1 of 2014
  • Mbunya Godfrey v Uganda (Criminal Appeal No. 4 of 2011)
  • Odongo Ronald v Uganda (Criminal Appeal No. 48 of 2010)
  • Wamutabaniwe Jamiru v Uganda (Criminal Appeal No. 74 of 2007)
  • Kamya Johnson Wavamunno v Uganda (Criminal Appeal No. 15 of 2000)
  • Karisa Moses v Uganda (Criminal Appeal No. 23 of 2016)
  • Bashasha Sharif v Uganda (Criminal Appeal No. 82 of 2018)
  • Turyahabwe Ezra and 12 Others v Uganda (Criminal Appeal No. 50 of 2015)
  • Kaddu Kavulu Lawrence v Uganda (Criminal Appeal No. 22 of 2018)
  • Kyalimpa Edward v Uganda (Criminal Appeal No. 10 of 1995)
  • Ogalo s/o Owoura v R (1954) 21 EACA 270
  • James v R (1950) 18 EACA 147
  • Tigo Stephen v Uganda (Criminal Appeal No. 8 of 2009)
  • Oketlo Alfred and Others v Uganda (Criminal Appeal No. 28 of 2016)
  • Wamutabaniwe Jamiru v Uganda (Criminal Appeal No. 74 of 2007)
  • Kasaija Daudi v Uganda (Criminal Appeal No. 128 of 2008)
  • Tumwesigye Anthony v Uganda (Criminal Appeal No. 46 of 2012)
  • Atiku Lino v Uganda (Criminal Appeal No. 41 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.