Opendi and Another v Uganda (Criminal Appeal No. 211 of 2011)

Court of Appeal · [2023] UGCA 58 · 2023 Appeal Dismissed ✦ AI-generated summary ↓ Download

Jurisdiction

Uganda

Case Type

Criminal appeal against sentence from High Court conviction for murder

Decision

Appeal against sentence dismissed; sentence of life imprisonment upheld. The 2nd appellant's appeal was earlier dismissed as he had completed his sentence.

The full judgment

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Holding

On appeal against sentence only, the Court of Appeal held that life imprisonment imposed for murder, committed gruesomely at the appellant's instigation, was appropriate and consistent with sentences in comparable murder cases. Although the trial Judge erred by making only a blanket statement that he had heard both sides without expressly recording that he considered the mitigating and aggravating factors, the omission did not occasion a failure of justice under section 139(1) of the Trial on Indictments Act, as the appellant was not given the maximum penalty. The Court also noted that Article 23(8) of the Constitution does not apply to life sentences. The appeal was dismissed and the sentence upheld.

Facts

On 28 February 2009 at Amagoro A Central Zone in Tororo District, the appellant (Opendi Michael) together with Okoth Vincent and others gathered and attacked members of the deceased's family along a common road after responding to an alarm. Okoth Vincent fatally struck Obbo Stephen Wekera on the head with a panga while the appellant, his uncle, urged and commanded "you kill, don't leave him, kill him". The appellant had, on the day before, sought permission from the LC1 Chairman to fight the deceased's family, indicating premeditation. The appellant did not physically assault the deceased but was convicted under the doctrine of common intention. The High Court convicted both of murder, sentencing the appellant to life imprisonment and Okoth Vincent to 14 years. By the time of appeal, Okoth Vincent had completed his sentence and his appeal was dismissed. The appellant appealed against sentence only, contending it was manifestly harsh and excessive.

Issues

Whether the sentence of life imprisonment passed against the appellant was harsh and manifestly excessive and occasioned a miscarriage of justice.
Whether the trial Judge's failure to expressly state that he considered the aggravating and mitigating factors vitiated the sentence.

Orders

Appeal dismissed.
Sentence of life imprisonment upheld.

Key headnotes

Sentencing — Appellate Interference — Manifestly Harsh and Excessive Sentence

An appellate court will interfere with a sentence imposed by a trial court only where the sentence is illegal, founded on a wrong principle, ignores a material fact, or is so harsh and excessive as to occasion a miscarriage of justice; a high threshold must be met before such interference is justified.

Sentencing — Duty to Record Mitigating and Aggravating Factors

A judicial officer must record what the accused submitted in mitigation and expressly state that the sentence was arrived at with both the mitigating and aggravating factors in mind; a blanket statement that the court has heard both sides does not demonstrate that the court addressed its mind to the mitigating factors.

Sentencing — Curable Irregularity — Failure to State Consideration of Factors

Where a trial Judge omits to expressly state that both aggravating and mitigating factors were considered, the omission does not necessarily occasion a failure of justice under section 139(1) of the Trial on Indictments Act, particularly where the accused was not sentenced to the maximum penalty.

Article 23(8) — Remand Period — Inapplicability to Life and Death Sentences

Article 23(8) of the Constitution requiring deduction of the period spent on remand applies only to sentences for a quantified term of imprisonment and is not amenable to sentences of life imprisonment or death.

Sentencing — Principle of Consistency — Range of Sentences for Murder

In assessing whether a sentence is appropriate, courts apply the principle of consistency by considering the range of sentences imposed in offences of a similar nature committed in similar circumstances.

Murder — Common Intention — Liability of Instigator

A person who instigates or urges the commission of murder may be convicted under the doctrine of common intention and sentenced to life imprisonment even where he did not physically assault the deceased.

Legislation cited (7)

Penal Code Act s.188
Penal Code Act s.189
Judicature Act s.11
Judicature (Court of Appeal Rules) Directions r.5
Judicature (Court of Appeal Rules) Directions r.43(a)
Constitution of Uganda art.23(8)
Trial on Indictments Act s.139(1)

Cases cited (16)

Tigo Stephen v Uganda (Criminal Appeal No. 8 of 2009)
Aharikundira Yustina v Uganda (Criminal Appeal No. 27 of 2015)
Adiga v Uganda (Criminal Appeal No. 157 of 2010)
Anywar Patrick and Another v Uganda (Criminal Appeal No. 166 of 2009)
Sebuliba Siraji v Uganda (Criminal Appeal No. 319 of 2009)
Kato Kajubi Godfrey v Uganda (Criminal Appeal No. 173 of 2012)
Father Narsensio Begumisa & 3 Others vs Eric Tibebaga [2004] KALR 236
Magezi Gad v Uganda (Criminal Appeal No. 17 of 2014)
Ramathan Magala v Uganda (Criminal Appeal No. 1 of 2014)
Alemiga James v Uganda (Criminal Appeal No. 234 of 2017)
Odyambo Juventine v Uganda (Criminal Appeal No. 81 of 2016)
Aharikundira Yustina v Uganda (Criminal Appeal No. 27 of 2015)
Budebo Kasto v Uganda (Criminal Appeal No. 94 of 2009)
Mbunya Godfrey v Uganda (Criminal Appeal No. 4 of 2011)
Wodada Moses v Uganda (Criminal Appeal No. 758 of 2014)
Attorney General v Susan Kigula and 417 Others (Constitutional Appeal No. 3 of 2006)

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