Wakilii

Twesigye v Uganda (Criminal Appeal 43 of 2016)

Supreme Court · [2018] UGSC 87 · 2018 Appeal Allowed ✦ AI-generated summary ↓ Download
Jurisdiction
Uganda
Case Type
Second criminal appeal from the Court of Appeal against severity of sentence in a murder conviction
Decision
Appeal allowed; 30-year sentence set aside and substituted with 29 years and 6 months' imprisonment from the date of conviction

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Holding

The Supreme Court held that the Court of Appeal's failure to indicate that it had taken into account the period the appellant spent on remand, as required by Article 23(8) of the Constitution, rendered the 30-year sentence illegal. The appeal was allowed and the illegal sentence set aside. Exercising the trial court's jurisdiction under section 7 of the Judicature Act, the Court considered 34 years appropriate, then deducted the 4 years and 6 months spent on remand, substituting a sentence of 29 years and 6 months to run from the date of conviction. The Court distinguished Abelle Asuman and followed Rwabugande, which requires arithmetic deduction of remand time.

Facts

The appellant was charged with the murder of his half-brother, Byarugaba Henry, on 11 March 2003 at Kahenda village, Mbarara District. According to the appellant's wife (PW3), she found the appellant wielding an axe over the deceased, who lay bleeding on the floor; the appellant then dropped the body into a pit near the house and covered it with soil. He had the grave disguised with a banana sucker and threatened PW3 with death. After about a year and a half, following PW3's disclosure and investigations, the appellant was arrested and the body exhumed. He was convicted of murder on 31 March 2009 and sentenced to death. Following Susan Kigula, the matter was remitted for mitigation, but the death sentence was maintained. On a second appeal, the Court of Appeal set aside the death sentence and substituted 30 years' imprisonment, running from the date of conviction, without indicating that it had accounted for the period spent on remand.

Issues

  1. Whether the Court of Appeal's sentence of 30 years' imprisonment was illegal for failing to take into account the period the appellant spent on remand as required by Article 23(8) of the Constitution.
  2. What sentence should be substituted if the impugned sentence is set aside as illegal.

Orders

  • Appeal allowed.
  • The illegal sentence of 30 years' imprisonment set aside.
  • A sentence of 29 years and 6 months' imprisonment substituted, to run from the date of conviction.

Key headnotes

Sentencing — Remand period — Article 23(8) of the Constitution
A definite term of imprisonment imposed without any indication that the sentencing court took into account the period the convict spent in lawful custody on remand, as required by Article 23(8) of the Constitution, is illegal.
Sentencing — Deduction of remand period — Arithmetic deduction after Rwabugande
When sentencing a convict to a definite period of imprisonment after the decision in Rwabugande v Uganda, the sentencing court must deduct, in an arithmetic manner, the period spent on remand from the period of imprisonment to which the convict is sentenced.
Appeal against sentence — Grounds for appellate interference
An appellate court will not interfere with a sentence imposed by a lower court in the exercise of its discretion unless the sentence is illegal, manifestly excessive, so low as to amount to a miscarriage of justice, the sentencing court ignored an important matter, or the sentence is wrong in principle.
Precedent — Temporal application of binding authority
A precedent must be in existence before it can be followed; a decision cannot bind courts for cases decided before that decision was delivered.

Legislation cited (4)

  • Penal Code Act s.188
  • Penal Code Act s.189
  • Constitution of Uganda 1995 Article 23(8)
  • Judicature Act (Cap 13) s.7

Cases cited (10)

  • Rwabugande v Uganda (Criminal Appeal No. 25 of 2014)
  • Abelle Asuman v Uganda (Criminal Appeal No. 66 of 2016)
  • Attorney General v Susan Kigula and Others (Constitutional Appeal No. 3 of 2006)
  • Susan Kigula vs Uganda HCT OO-CR-115
  • Kiwalabye Bernard v Uganda (Criminal Appeal No. 143 of 2001)
  • Kizito Senkula v Uganda (Criminal Appeal No. 24 of 2001)
  • Ogalo S/O Owuora Vs R (1954) 24 EACA
  • Kabuye Senvawo v Uganda (Criminal Appeal No. 2 of 2002)
  • Katende Ahamed v Uganda (Criminal Appeal No. 6 of 2004)
  • Bukenya Joseph v Uganda (Criminal Appeal No. 17 of 2010)
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.