Tabu & Another v Uganda (Criminal Appeal 828 of 2014)

Court of Appeal · [2024] UGCA 277 · 2024 Appeal Allowed (Resentenced) ✦ AI-generated summary ↓ Download

Jurisdiction

Uganda

Case Type

Criminal appeal against sentence only from High Court conviction for murder and aggravated robbery

Decision

Sentences set aside; appellants resentenced afresh to 15 years on Count 1 and 10 years on each of Counts 2 and 3, all running concurrently, with mandatory compensation to the robbery victims

The full judgment

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Holding

On a first appellate court's power to interfere with sentence, the Court of Appeal held that the trial judge's distinction between the two appellants' degrees of participation was unfounded, as recent possession of stolen property and phone-tracking evidence both constituted circumstantial evidence, so the variance in sentences was unjustified. The court further held that the failure to deduct the five years spent on remand, contrary to Article 23(8) of the Constitution, rendered the sentences unconstitutional and illegal. Exercising its resentencing powers under section 11 of the Judicature Act, the court set aside the sentences and resentenced both appellants afresh, deducting the remand period and ordering mandatory compensation to the robbery victims.

Facts

Four men entered shops at Mundaya 'A' village, Dabani Sub-county, Busia District, assaulted Topista Were and robbed her of a Nokia phone, a SIM card and Shs. 100,000, then robbed another trader of Shs. 160,000. The local LC III Chairman tried to restrain the robbers and was shot dead instantly by one of them. Police tracked the stolen phone through MTN records, which showed the robbers swapping SIM cards. The first appellant was later found in possession of the robbed phone, and phone-tracking and call records linked the second appellant to the gang, including dealings with a prime suspect, Karim, who was killed during a police operation. The appellants were indicted and convicted of one count of murder and two counts of aggravated robbery, the first appellant largely on recent possession of stolen property and the second on circumstantial phone-tracking evidence.

Issues

Whether the sentences of 15 and 20 years imposed on the appellants were harsh and manifestly excessive.
Whether the trial judge erred in imposing varying sentences on the two appellants on the murder count without justification.
Whether the trial judge's failure to deduct the period spent on remand rendered the sentences illegal and unconstitutional.

Orders

On Count 1 (murder), a sentence of 20 years imprisonment is imposed on each appellant, less 5 years spent on remand, leaving 15 years from 14 September 2014.
On Count 2 (aggravated robbery), a sentence of 15 years is imposed on each appellant, less 5 years on remand, leaving 10 years from 14 September 2014.
On Count 3 (aggravated robbery), a sentence of 15 years is imposed on each appellant, less 5 years on remand, leaving 10 years from 14 September 2014.
All sentences shall run concurrently.
Both appellants to pay, jointly and severally, Shs. 1,000,000 to the victim of the robbery in Count 2 and Shs. 1,000,000 to the victim of the robbery in Count 3.

Key headnotes

Sentencing — Appellate Interference — Grounds for Interfering with Trial Court's Discretion

A first appellate court will only interfere with a sentence imposed by a trial court where the sentence is illegal, harsh or manifestly excessive, where there has been a failure to exercise discretion, where a material factor was not taken into account, or where an error in principle was made.

Sentencing — Variance Between Co-Convicts — Equal Degree of Participation

Where the evidence does not establish that one convict participated to a greater or lesser extent in the offence than the other, there is no justification for imposing different sentences on co-convicts for the same count.

Circumstantial Evidence — Recent Possession of Stolen Property

Recent possession of stolen property and evidence of phone-tracking and dealings with offenders both fall under the head of circumstantial evidence, and neither species establishes a greater or lesser degree of participation than the other.

Sentencing — Remand Period — Article 23(8) of the Constitution

A sentencing court must take into account and deduct the period a convict has spent in lawful custody before completion of trial, and failure to deduct the remand period renders the sentence unconstitutional and illegal.

Appellate Procedure — Resentencing Powers — Section 11 of the Judicature Act

Section 11 of the Judicature Act clothes the Court of Appeal with the powers of the trial court, enabling it to set aside an illegal sentence and resentence a convict afresh.

Aggravated Robbery — Compensation to Victims — Section 286(4) of the Penal Code Act

An order of compensation to the victim of aggravated robbery is mandatory pursuant to section 286(4) of the Penal Code Act.

Legislation cited (7)

Penal Code Act Cap 120 s.188
Penal Code Act Cap 120 s.189
Penal Code Act Cap 120 s.285
Penal Code Act Cap 120 s.286(2)
Penal Code Act Cap 120 s.286(4)
Judicature Act s.11
Constitution of the Republic of Uganda 1995 Article 23(8)

Cases cited (2)

Magala Ramadan v Uganda (Supreme Court Criminal Appeal No. 1 of 2014)
Kiwalabye Bernard v Uganda (Supreme Court Criminal Appeal No. 143 of 2001)

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.