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Nasim Akhtar (Deceased) and Others v Uganda (Criminal Appeal 611 of 2023)

Court of Appeal · [2026] UGCA 65 · 2026 Appeal Dismissed ✦ AI-generated summary ↓ Download
Jurisdiction
Uganda
Case Type
Second criminal appeal against sentence only, from a decision of the High Court exercising its appellate jurisdiction
Decision
Appeal dismissed; the first appellate court's five-year sentence for the second and third Appellants upheld

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Holding

On a second appeal against sentence, the Court of Appeal held that the first appellate judge had not enhanced the trial court's four-year sentence. She had quashed it as illegal and unconstitutional for failing to credit the period spent on pre-trial remand contrary to Article 23(8), so it amounted to no sentence at all. In imposing a fresh five-year term under section 11 of the Judicature Act she was re-sentencing, not enhancing; accordingly the procedural safeguards for enhancement (notice, warning and a cross-appeal) and the authority of Solomon Nkojo did not apply. Both counsel had misconstrued the law. The Court found no fault with the first appellate judge's decision and dismissed the appeal.

Facts

The Appellants were convicted of theft by the Chief Magistrates Court of Mukono and sentenced to four years' imprisonment for stealing about 283 metric tons of processed coffee valued at USD 505,586 (approximately UGX 1,845,388,900), the property of Export Trading Company (U) Ltd, at Namanve Business Park between January and March 2018. Their first appeal to the High Court of Mukono against conviction and sentence failed on conviction. However, the first appellate judge set aside the four-year sentence as illegal and unconstitutional because it disregarded the period the Appellants had spent on pre-trial remand. Invoking the Judicature Act and the Criminal Procedure Code Act, she imposed a five-year term on each Appellant. The Appellants brought a second appeal contending this was an unlawful enhancement. The first Appellant died in prison in February 2024, abating the appeal against him.

Issues

  1. Whether the first appellate court erred in law by imposing a five-year sentence in substitution of the trial court's four-year sentence without observing the procedural safeguards required for an enhancement of sentence.
  2. Whether the imposition of the fresh sentence constituted an enhancement requiring notice, warning and a cross-appeal, or a re-sentencing following the quashing of an illegal sentence.

Orders

  • Appeal abated against the first Appellant (deceased) under Rule 71 of the Court of Appeal Rules; his name expunged from the record.
  • Miscellaneous Application No. 96 of 2024 for bail pending appeal struck out by reason of withdrawal.
  • Appeal dismissed.

Key headnotes

Criminal Sentencing — Pre-trial remand — Article 23(8) of the Constitution
A sentence that fails to take into account the period an accused spent in lawful custody prior to trial contravenes Article 23(8) of the Constitution and is illegal, amounting to no sentence at all; the credit for remand is necessarily arithmetical and must be specifically given.
Appeals — Sentencing — Re-sentencing distinguished from enhancement
Where an appellate court quashes an illegal sentence and imposes a fresh sentence under section 11 of the Judicature Act, it is exercising a re-sentencing power and not enhancing the original sentence; the procedural safeguards governing enhancement, namely a cross-appeal, a prayer for enhancement and a warning to the accused, do not apply.
Second appeals — Court of Appeal jurisdiction — Section 45 Criminal Procedure Code Act
On a second appeal from a decision of the High Court exercising its appellate jurisdiction, the Court of Appeal is confined to matters of law, not including severity of sentence, and may appraise the inferences of fact drawn by the trial court but may not hear additional evidence.

Legislation cited (14)

  • Penal Code Act s.254
  • Penal Code Act s.261
  • Judicature Act s.11
  • Judicature Act s.14(1)
  • Judicature Act s.16(1)
  • Criminal Procedure Code Act s.34
  • Criminal Procedure Code Act s.34(2)(b)
  • Criminal Procedure Code Act s.45
  • Constitution of Uganda art.23(8)
  • Constitution of Uganda art.28
  • Constitution of Uganda art.44(c)
  • Human Rights (Enforcement) Act
  • Judicature (Court of Appeal Rules) Directions rule 32(2)
  • Court of Appeal Rules rule 71

Cases cited (3)

  • Kifamunte Henry v Uganda (Supreme Court Criminal Appeal No. 10 of 1997)
  • Sgt Solomon Nkojo v Uganda (Supreme Court Criminal Appeal No. 2 of 2022)
  • Rwabugande Moses v Uganda (Supreme Court Criminal Appeal No. 25 of 2014)
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.