Wakilii

Sebunya & Another v Uganda (Criminal Appeal 58 of 2016)

Supreme Court · [2018] UGSC 73 · 2018 Appeal Dismissed ✦ AI-generated summary ↓ Download
Jurisdiction
Uganda
Case Type
Second criminal appeal to the Supreme Court against sentence only, from the Court of Appeal's confirmation of a High Court sentence
Decision
Appeal against sentence dismissed; the 30 years' imprisonment sentences on each count, running concurrently, were upheld.

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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 an issue of illegality, including an allegedly illegal sentence, may be raised at any time even for the first time on a second appeal, since a court cannot sanction illegality, and so considered the ground despite it not being raised in the Court of Appeal. On the merits, it held that the requirement in Rwabugande Moses v Uganda (decided 3 March 2017) that a trial court arithmetically deduct time spent on remand has no retrospective effect. As the appellants were sentenced in 2013 and that was confirmed in 2016, the trial court's statement that it took the remand period into account complied with the law then in force. The sentences were not illegal and the appeal was dismissed.

Facts

The appellants were convicted by the High Court on 7 June 2013 on two counts of aggravated robbery and murder and each sentenced to 30 years' imprisonment on each count, the sentences to run concurrently. In sentencing, the trial judge stated that the sentences were imposed taking into account the period spent on remand, but did not arithmetically deduct the approximately 4 years and 6 months the appellants had spent on remand. The appellants appealed to the Court of Appeal against sentence only; that appeal was dismissed on 20 December 2016. On further appeal to the Supreme Court, the appellants contended for the first time that the sentence was illegal for non-compliance with Article 23(8) of the Constitution. The Supreme Court's decision in Rwabugande Moses v Uganda, requiring arithmetic deduction of remand time, was delivered later on 3 March 2017.

Issues

  1. Whether the Supreme Court could entertain a complaint of an illegal sentence raised for the first time on a second appeal, the issue not having been raised in the Court of Appeal.
  2. Whether a sentence imposed before Rwabugande Moses v Uganda is illegal for failing to arithmetically deduct the period spent on remand contrary to Article 23(8) of the Constitution.
  3. Whether the rule in Rwabugande requiring arithmetic deduction of remand time has retrospective effect on sentences passed before that decision.

Orders

  • Appeal dismissed.

Key headnotes

Appeals — Points Raised for the First Time on Second Appeal — Illegality
An issue of illegality, including the legality of a sentence, may be raised and considered at any time, even for the first time on a second appeal, because a court of law cannot sanction that which is illegal, provided the parties are given an opportunity to be heard on it.
Sentencing — Period Spent on Remand — Article 23(8) of the Constitution
Following the Sentencing Guidelines and Rwabugande Moses v Uganda, a trial court must calculate the period a convict has spent on remand and subtract it from the term of imprisonment imposed; merely stating that the remand period has been taken into account is no longer sufficient or lawful.
Precedent — Retrospective Effect — Sentencing Decisions
The rule in Rwabugande Moses v Uganda requiring arithmetic deduction of time spent on remand has no retrospective effect on sentences passed before that decision; sentences passed earlier are not rendered illegal where the court took the remand period into account in accordance with the law then in force.

Legislation cited (3)

  • Constitution of Uganda art.23(8)
  • Constitution of Uganda art.28(3)
  • Judicature Act s.5

Cases cited (8)

  • Rwabugande Moses v Uganda (Supreme Court Criminal Appeal No. 25 of 2014)
  • Interfreight Forwarders (U) Ltd v East African Development Bank (Supreme Court Civil Appeal No. 33 of 1992)
  • Attorney General v Paul Ssemogerere & Another (Constitutional Appeal No. 3 of 2004)
  • Fang Min v Belex Tours and Travel Ltd (Supreme Court Civil Appeal No. 5 of 2013)
  • Makula International Ltd v Cardinal Emmanuel Nsubuga & Others (Supreme Court Civil Appeal No. 4 of 1981)
  • National Social Security Fund & Others vs. Alcon International, No. 149 of 2011
  • Kizito Senkula v Uganda (Supreme Court Criminal Appeal No. 24 of 2001)
  • Kabuye Senvawo v Uganda (Supreme Court Criminal Appeal No. 2 of 2002)
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.