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Nabaya v Uganda (Criminal Appeal 60 of 2012)

Court of Appeal · [2023] UGCA 346 · 2023 Sentence Reduced ✦ AI-generated summary ↓ Download
Jurisdiction
Uganda
Case Type
Criminal appeal against sentence only from High Court conviction for aggravated defilement
Decision
Appeal on sentence succeeded; 20-year sentence set aside and substituted with 18 years and 4 months after deducting remand time

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Holding

The Court of Appeal held that the sentencing regime in 2011 did not require arithmetic deduction of remand time, as Rwabugande Moses v Uganda does not apply retrospectively; it sufficed that the trial Judge took remand time into account. However, the trial Judge's statement that remand years were "to be taken into account" was ambiguous and futuristic, showing no actual deduction, rendering the sentence illegal. The Court set aside the sentence under section 11 of the Judicature Act, found 20 years appropriate, deducted 1 year and 8 months spent on remand, and substituted a sentence of 18 years and 4 months running from the date of conviction.

Facts

On 19 May 2010 at Bunasomi village, Sironko District, the appellant performed a sexual act on his own daughter, Nambafu Loyce, a child of 10 years. He was indicted for aggravated defilement contrary to sections 129(3), (4)(a) and (c) of the Penal Code Act. He was convicted and sentenced by the High Court at Mbale to 20 years' imprisonment, with the trial Judge stating that the years spent on remand were to be taken into account. The appellant had been arrested on 19 May 2010 and had spent approximately 1 year and 8 months on remand by the time of sentence. He appealed against sentence only, arguing it was manifestly excessive and that the trial Judge failed to deduct the time spent on remand as required by Article 23(8) of the Constitution.

Issues

  1. Whether the sentencing regime applicable in 2011 required the trial Judge to arithmetically deduct the time spent on remand.
  2. Whether the trial Judge took into account the time the appellant spent on remand when imposing sentence.
  3. Whether the sentence of 20 years' imprisonment was manifestly excessive.

Orders

  • The appeal succeeds on the above terms.
  • The sentence of the trial Court is set aside.
  • The Appellant shall serve 18 years and 4 months, having deducted the 1 year and 8 months spent on remand.
  • The sentence shall run from the date of conviction.

Key headnotes

Sentencing — Time Spent on Remand — Non-Retrospective Application of Arithmetic Deduction Rule
The rule in Rwabugande Moses v Uganda requiring arithmetic deduction of time spent on remand does not apply retrospectively; for sentences passed before that decision it sufficed that the sentencing court took the remand period into account without performing an arithmetic deduction.
Article 23(8) — Consideration of Remand Period — Requirement of Clarity in Sentencing
A sentencing court purporting to take remand time into account must do so in clear, unambiguous terms; a futuristic or vague statement that remand years are "to be taken into account" without identifying the period or effecting consideration does not satisfy Article 23(8) and renders the sentence illegal.
Appellate Interference with Sentence — Manifestly Excessive Sentence — Error in Principle
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 — Illegal Sentence — Power to Set Aside and Re-Sentence
A sentence that fails to take into account the time spent on remand is illegal, and the Court of Appeal may invoke its powers under section 11 of the Judicature Act to set aside the trial court's sentence and sentence the appellant afresh.

Legislation cited (5)

  • Penal Code Act s.129(3)(4)(a) and (c)
  • Constitution 1995 Article 23(8)
  • Judicature Act s.11
  • Court of Appeal Rules r.30(1)(a)
  • Constitution (Sentencing Guidelines for Courts of Judicature) (Practice) Directions, 2013 paragraph 6(c)

Cases cited (22)

  • Kiwalabye Bernard v Uganda (Criminal Appeal No. 143 of 2001)
  • Rwabugande Moses v Uganda (Criminal Appeal No. 25 of 2014)
  • Kyalimpa Edward v Uganda (Criminal Appeal No. 10 of 1995)
  • Abelle Asuman v Uganda (Criminal Appeal No. 66 of 2016)
  • Bukenya Joseph v Uganda (Criminal Appeal No. 17 of 2010)
  • Tindifa Moses v Uganda (Criminal Appeal No. 256 of 2011)
  • Musabuli Sedu v Uganda (Criminal Appeal No. 111 of 2011)
  • Mugerwa Paul v Uganda (Criminal Appeal No. 461 of 2015)
  • Kifamunte Henry v Uganda (Criminal Appeal No. 10 of 1997)
  • Wamutabaniwe Jamiru v Uganda (Criminal Appeal No. 74 of 2007)
  • Kamya Johnson Wavamuno v Uganda (Criminal Appeal No. 16 of 2000)
  • Kizito Senkula v Uganda (Criminal Appeal No. 24 of 2001)
  • Sebunya Robert and Another v Uganda (Criminal Appeal No. 58 of 2016)
  • Bachwa Benon v Uganda (Criminal Appeal No. 896 of 2014)
  • Bonyo Abdul v Uganda (Criminal Appeal No. 7 of 2011)
  • Kaserebanyi James v Uganda
  • Mutebi Ronald v Uganda (Criminal Appeal No. 38 of 2019)
  • Pandya v R [1957] EA 336
  • Ruwala v R [1957] EA 570
  • Bosere Moses v Uganda Cr. App No. 1/97 (SC)
  • Okethi Okale v Republic [1965] EA 555
  • Mbazira Sirasi and Anor v Uganda Cr App No. 7/2004 (SC)
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.