Wakilii

Nashimolo Paul Kibolo v Uganda [2020] UGSC 24

Supreme Court · 2020 Appeal Allowed ✦ AI-generated summary ↓ Download
Jurisdiction
Uganda
Case Type
Second criminal appeal against sentence on the ground of illegality of sentence
Decision
Appeal on illegality of sentence allowed; sentence re-determined by the Supreme Court at 30 years and 6 months' imprisonment, running from the date of conviction.

The full judgment

Read the complete, verbatim text of this judgment.

Sign in to read the full judgment
Treatment recorded in citing cases followed in 2 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

Under Article 23(8) of the Constitution, as interpreted in Rwabugande Moses v Uganda, taking into account the period spent on remand is necessarily arithmetical: it must be specifically deducted from the final sentence. The Court of Appeal, sentencing after Rwabugande became law, failed to deduct the remand period and acted per incuriam, rendering its sentence illegal. Resolving the conflict, the Court held Rwabugande prevails and the later Abelle Asuman decision was itself per incuriam to the extent it revived the outlawed position. Invoking section 7 of the Judicature Act, the Court set the sentence at 33 years, deducted 2 years 6 months on remand, and imposed 30 years 6 months.

Facts

On 23 September 2001 at Bulusemu village, Mbale District, the appellant, armed with a panga, attacked the deceased Muleme Clement at his home, cutting his head, shoulders and body in the presence of the deceased's grandson, and remained at the scene threatening anyone who tried to help until his arrest. The deceased died at a nearby clinic. The appellant was convicted of murder and sentenced to the mandatory death penalty by the High Court on 12 March 2004. Following Attorney General v Susan Kigula, the case was remitted for resentencing, where he received life imprisonment. The Court of Appeal set aside that sentence and substituted 30 years. The Court of Appeal sentenced him on 21 August 2017, after Rwabugande Moses v Uganda became law on 3 March 2017, but did not arithmetically deduct the 2 years 6 months he had spent on remand. He had also spent over ten years on death row.

Issues

  1. Whether the Court of Appeal complied with Article 23(8) of the Constitution by making an arithmetic deduction of the period spent on remand when it sentenced the appellant to 30 years' imprisonment.
  2. Whether the Court of Appeal's failure to arithmetically deduct the remand period rendered the sentence illegal so as to entitle the Supreme Court to interfere with the exercise of sentencing discretion.
  3. Which of the conflicting decisions in Rwabugande Moses v Uganda and Abelle Asuman v Uganda states the prevailing law on the meaning of taking into account the period spent on remand.

Orders

  • The ground of appeal on illegality of sentence succeeds.
  • A sentence of 33 years' imprisonment is appropriate; the 2 years and 6 months spent on remand are deducted.
  • The appellant shall serve a sentence of 30 years and 6 months' imprisonment to run from the time of conviction.

Key headnotes

Sentencing — Article 23(8) of the Constitution — Remand period must be deducted arithmetically
Taking into account the period a convict has spent on remand under Article 23(8) of the Constitution is necessarily an arithmetical exercise; the sentencing court must specifically credit and subtract that period from the final sentence, and a sentence couched in general terms that the remand period was considered does not satisfy the constitutional requirement.
Appellate interference with sentence — Illegality as a ground
An appellate court may interfere with the sentencing discretion of a lower court only where the sentence is illegal, or there was a failure to exercise discretion, a failure to take into account a material consideration, consideration of an immaterial matter, or an error in principle; a sentence that fails to make the mandatory arithmetical deduction of the remand period is illegal and warrants interference.
Doctrine of precedent — Article 132(4) — Decisions made per incuriam
Under Article 132(4) of the Constitution and the doctrine of stare decisis, a lower court is bound to follow a Supreme Court decision from the date it is delivered; a court that decides contrary to the prevailing Supreme Court authority then in force acts per incuriam, and its decision on that point cannot stand.
Sentencing — Reconciliation of Rwabugande and Abelle Asuman
The prevailing law on the deduction of the remand period is that stated in Rwabugande Moses v Uganda; to the extent the later decision in Abelle Asuman v Uganda revived the earlier position that no arithmetical deduction is required, it was decided per incuriam and does not displace Rwabugande.

Legislation cited (6)

  • Constitution of Uganda 1995 art.23(8)
  • Constitution of Uganda 1995 art.132(4)
  • Penal Code Act s.188
  • Penal Code Act s.189
  • Judicature Act s.7
  • Judicature Act s.11

Cases cited (20)

  • Attorney General v Susan Kigula and 417 Others (Constitutional Appeal No. 3 of 2006)
  • Rwabugande Moses v Uganda (Criminal Appeal No. 25 of 2014)
  • Kiwalabye Bernard v Uganda (Criminal Appeal No. 143 of 2001)
  • Wamutabanewe Jamiru v Uganda (Criminal Appeal No. 74 of 2007)
  • Abelle Asuman v Uganda (Criminal Appeal No. 66 of 2016)
  • Kyalimpa Edward v Uganda (Criminal Appeal No. 10 of 1995)
  • R vs. Haviland (1983) 5 Cr. App. R(s) 109
  • Ogalo s/o Owoura vs. R. (1954) 1 E.A.C.A 270
  • R vs. Mohamedali Jamal [1948] 1 E.A.C.A 126
  • Kamya Johnson Wavamuno v Uganda (Criminal Appeal No. 16 of 2000)
  • Karisa Moses v Uganda (Criminal Appeal No. 23 of 2016)
  • Kizito Senkula v Uganda (Criminal Appeal No. 24 of 2001)
  • Kabuye Senvewo v Uganda (Criminal Appeal No. 2 of 2002)
  • Katende Ahamad v Uganda (Criminal Appeal No. 6 of 2004)
  • Bukenya Joseph v Uganda (Criminal Appeal No. 17 of 2010)
  • Kabwiso Issa vs. Uganda (2001-225) HCB 20
  • Attorney General v Susan Kigula & Others (Constitutional Appeal No. 1 of 2005)
  • Latif Buulo v Uganda (Criminal Appeal No. 31 of 2017)
  • Attorney General v Uganda Law Society (Constitutional Appeal No. 1 of 2006)
  • Aharihundira Yusitina v Uganda (Criminal Appeal No. 27 of 2015)
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.