Tukamuhebwa & Anor v Uganda (Criminal Appeal 59 of 2016)

Supreme Court · [2018] UGSC 7 · 2018 Appeal Partly Allowed ✦ AI-generated summary ↓ Download

Jurisdiction

Uganda

Case Type

Second criminal appeal to the Supreme Court against sentence only, from the Court of Appeal's substituted sentence

Decision

Appeal partly allowed; first appellant's robbery sentence reduced to 16 years 5 months, rape sentence of 10 years upheld concurrently; juvenility ground dismissed

The full judgment

Read the complete, verbatim text of this judgment.

Cited — treatment unverified cited in 5 (treatment unverified) Derived from citing cases in the Wakilii corpus — not an assertion that this case is good law.

AI-generated summary. This summary was generated by AI from the full text of the judgment. It may contain errors or omissions — always read the source judgment before relying on it.

Holding

The Court held that the Court of Appeal fell into the same error it had faulted in the trial judge: in substituting an 18-year sentence for robbery it failed to state that it had taken into account the 3 years 7 months the appellants spent on remand, contrary to Article 23(8). Since Rwabugande Moses (requiring actual arithmetical deduction) does not apply retrospectively, the correct regime only required the court to demonstrate it had considered the remand period. The Court set aside the 18-year sentence, imposed 20 years, then deducted the remand period to a term of 16 years 5 months. The juvenility argument, never raised at trial, was rejected as an afterthought.

Facts

The appellants were tried and convicted in the Mbarara High Court by Bamwine J of aggravated robbery and rape, contrary to sections 185, 286 and 124 of the Penal Code Act. Each was sentenced to 20 years for aggravated robbery and 10 years for rape, to run concurrently. In sentencing, the trial judge stated he had considered the period spent on remand but did not specify it. On appeal, the Court of Appeal found the trial judge had not complied with Article 23(8), allowed the appeal, and substituted 18 years for robbery while maintaining 10 years for rape. The appellants had spent 3 years and 7 months on remand before sentencing. They appealed to the Supreme Court contending the Court of Appeal also failed to deduct the exact remand period, and that the first appellant had been a juvenile when the offence was committed.

Issues

Whether the Court of Appeal complied with Article 23(8) of the Constitution when, in substituting a new sentence, it failed to state the period spent on remand it had taken into account.
Whether it was illegal to impose a custodial sentence on the first appellant who claimed to have been a juvenile at the time the offence was committed, where age was never raised as an issue during the trial.

Orders

The substituted sentence of 18 years for robbery is set aside.
A sentence of 20 years imprisonment is imposed on count 1 (aggravated robbery), reduced to 16 years and 5 months after taking into account the 3 years 7 months spent on remand, to run from the date of sentence.
The sentence of 10 years on count 2 (rape) is upheld, to run concurrently.
The appeal on sentence is partly allowed; the appeal on ground 2 (age of appellant No. 1) is dismissed.

Key headnotes

Constitutional Law — Article 23(8) — Taking remand period into account in sentencing

To take into account the period spent on remand under Article 23(8) of the Constitution means to bear in mind, consider or be alive to that period before imposing a sentence; before the authority of Rwabugande Moses v Uganda it was sufficient for the court to demonstrate that it had considered the remand period, without performing an arithmetical deduction.

Criminal Law & Procedure — Sentencing — Appellate substitution of an illegal sentence

Where an appellate court substitutes a new sentence under section 11 of the Judicature Act without stating that it has taken into account the period the convict spent on remand, it commits the same illegality it faulted in the lower court, and the substituted sentence is liable to be set aside.

Criminal Law & Procedure — Sentencing — Retrospective application of authority

The authority of Rwabugande Moses v Uganda, which requires the actual deduction of the remand period, does not apply retrospectively to sentences governed by the earlier sentencing regime.

Criminal Law & Procedure — Appeals — New point of juvenility raised on appeal

An argument that an appellant was a juvenile at the time of the offence, never raised on the charge sheet, at trial, in defence, or before the Court of Appeal, is an afterthought and unsustainable on a further appeal.

Legislation cited (5)

Constitution of Uganda Article 23(8)
Judicature Act s.11
Penal Code Act s.185
Penal Code Act s.286
Penal Code Act s.124

Cases cited (3)

Rwabugande Moses v Uganda (Criminal Appeal No. 25 of 2014)
Kabuye Senvewo v Uganda (Criminal Appeal No. 2 of 2007)
Katende Ahamad v Uganda (Criminal Appeal No. 6 of 2004)

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.