Okello v Uganda (Criminal Appeal 403 of 2017)

The full judgment

Read the complete, verbatim text of this judgment.

Holding

The appellant was convicted of murder and sentenced to life imprisonment, appealing against sentence only. The Court of Appeal held that life imprisonment is not amenable to Article 23(8) of the Constitution, so the trial judge's failure to deduct time spent on remand did not render the sentence illegal, and the first ground failed. However, comparing the sentence against precedent for murder, the court found life imprisonment harsh and excessive for a youthful first offender who surrendered himself. It set aside the life sentence, substituted 20 years' imprisonment, and deducted the remand period, leaving the appellant 16 years, 9 months and 6 days to serve from the date of conviction.

Facts

On 25 March 2012 at Baropok 'B' village, Apac District, the appellant assaulted the deceased, Simon Ekwaro, by hitting him on the head with a club, then fled. An alarm attracted family members; the deceased, still breathing, named the appellant as his assailant before subsequently dying. The matter was reported to police, and the appellant handed himself over, was arrested and charged. He was indicted for murder contrary to sections 188 and 189 of the Penal Code Act, convicted as charged, and sentenced by the High Court at Lira to life imprisonment on 29 May 2015. He had spent 3 years 2 months and 24 days on remand. He appealed against sentence only, contending it was illegal and manifestly harsh and excessive.

Issues

1. Whether the sentence of life imprisonment was illegal for failing to take into account, and deduct, the time the appellant spent on remand as required by Article 23(8) of the Constitution.
2. Whether the sentence of life imprisonment was manifestly harsh and excessive in the circumstances.

Orders

• Ground 1 of the appeal (illegality for failure to deduct remand) fails.
• The sentence of life imprisonment is set aside.
• A sentence of 20 years' imprisonment is substituted, from which 3 years 2 months and 24 days spent on remand is deducted.
• The appellant is to serve 16 years, 9 months and 6 days in prison from the date of conviction, 29 May 2015.

Key headnotes

Legislation cited (5)

• Penal Code Act Cap 120 s.188
• Penal Code Act Cap 120 s.189
• Constitution of Uganda Article 23(8)
• Judicature Act s.11
• Judicature (Court of Appeal Rules) Directions, S.I 13-10, Rule 30(1)(a)

Cases cited (19)

• Abaasa Johnson and Another v Uganda (Criminal Appeal No. 33 of 2010)
• Kaddu Kavule Lawrence v Uganda (Criminal Appeal No. 72 of 2018)
• Magezi Gad v Uganda (Criminal Appeal No. 17 of 2014)
• Kifamunte Henry v Uganda (Criminal Appeal No. 10 of 1997)
• Fr. Narcensio Begumisa & Ors v Eric Tibebaaga (Civil Appeal No. 17 of 2002)
• National Environmental Management Authority (NEMA) v Solid State Limited (Civil Appeal No. 15 of 2015)
• Pandya v R [1957] EA 336
• Kamya Johnson Wavamuno v Uganda (Criminal Appeal No. 16 of 2000)
• Kiwalabye Bernard v Uganda (Criminal Appeal No. 148 of 2001)
• Sekandi Hassan v Uganda (Criminal Appeal No. 25 of 2019)
• Livingstone Kakooza v Uganda (Criminal Appeal No. 17 of 1993)
• Jackson Zita v Uganda (Criminal Appeal No. 19 of 1995)
• Aharikundira Yusitina v Uganda (Criminal Appeal No. 27 of 2015)
• Mbunya Godfrey v Uganda (Criminal Appeal No. 4 of 2011)
• Tusigwire Samuel v Uganda (Criminal Appeal No. 53 of 2016)
• Tumwesigye Anthony v Uganda (Criminal Appeal No. 46 of 2012)
• Onyabo Bosco v Uganda (Criminal Appeal No. 737 of 2014)
• Attorney General v Susan Kigula & 417 Ors (supra)
• Ntambi Robert v Uganda (Criminal Appeal No. 384 of 2018)