Wakilii

Segawa v Uganda (Criminal Appeal 65 of 2016)

Supreme Court · [2021] UGSC 54 · 2021 Appeal 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 for murder
Decision
Appeal allowed; illegal sentence set aside and replaced with 20 years imprisonment running from the date of conviction after deducting the remand period

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Cited — treatment unverified cited in 3 (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 Supreme Court held that, although the illegality of the sentence was raised for the first time on second appeal, it would be entertained because a court cannot sanction an illegal sentence affecting the constitutional right to a fair hearing. Reaffirming Rwabugande Moses v Uganda as the correct position and treating the contrary view in Abelle Asuman as per incuriam, the Court held that Article 23(8) makes deduction of the remand period mandatory and arithmetical. The Court of Appeal's 20-year sentence, imposed without deducting the appellant's two years on remand, was illegal and set aside. Exercising its powers under section 7 of the Judicature Act, the Court imposed 22 years and deducted the two years on remand, leaving 20 years from the date of conviction.

Facts

The appellant was indicted for and convicted of murder contrary to sections 188 and 189 of the Penal Code Act. The High Court sentenced him to 45 years imprisonment, recording that he was a first offender who had spent two years in prison without trial and that the offence was committed in a cruel manner. On appeal, the Court of Appeal found the 45-year sentence harsh and manifestly excessive, set it aside, and substituted a sentence of 20 years from the date of conviction. The appellant appealed to the Supreme Court against sentence alone, contending that the Court of Appeal had imposed an illegal sentence because it failed to take into account the two years he had spent on remand, contrary to Article 23(8) of the Constitution. The record showed the trial court had accounted for the remand period, but the Court of Appeal had not.

Issues

  1. Whether the illegality of the sentence, raised for the first time on second appeal, could be entertained despite not having been a ground of appeal in the Court of Appeal.
  2. Whether the Court of Appeal's sentence of 20 years imprisonment was illegal for failure to take into account the period the appellant had spent on remand as required by Article 23(8) of the Constitution.
  3. What sentence ought properly to be imposed on the appellant for the offence of murder.

Orders

  • The Court of Appeal's sentence of 20 years imprisonment is set aside as illegal.
  • A sentence of 22 years imprisonment is imposed, from which the 2 years spent on remand are deducted.
  • The appellant shall serve 20 years imprisonment from 16 March 2012, the date of his conviction.

Key headnotes

Criminal Procedure — Appeals — Grounds raised for the first time on appeal — Illegality of sentence
An appellate court will not ordinarily consider an argument raised for the first time on appeal, but it may do so where the argument concerns the illegality of a sentence, because a court of law cannot sanction what is illegal.
Constitutional Law — Article 23(8) — Remand period — Mandatory arithmetical deduction
Under Article 23(8) of the Constitution the taking into account of the period a convict has spent on remand is mandatory and necessarily arithmetical; that period must be specifically credited by subtracting it from the final sentence.
Sentencing — Illegality — Failure to deduct remand period
A sentence arrived at without taking into consideration the period spent on remand is illegal for failure to comply with a mandatory constitutional provision, and is liable to be set aside.
Sentencing — Appellate interference with sentence — Principles
An appellate court will not interfere with the sentencing discretion of a trial judge unless it is evident that the judge acted on a wrong principle, overlooked a material factor, or the sentence is manifestly excessive or lenient in the circumstances of the case.
Precedent — Stare decisis — Conflicting decisions of the same court — Per incuriam
Where two of its own decisions conflict, the Supreme Court must decide which to follow; a later decision that reinstates a position the court had earlier expressly departed from, without justification, is made per incuriam and does not displace the binding earlier authority.

Legislation cited (8)

  • Penal Code Act s.188
  • Penal Code Act s.189
  • Constitution of Uganda art.23(8)
  • Constitution of Uganda art.132(4)
  • Judicature Act s.7
  • Court of Appeal Rules r.102
  • Supreme Court Rules r.70(1)
  • Supreme Court Rules r.63

Cases cited (14)

  • Tukamuhebwa David Junior and Another v Uganda (Criminal Appeal No. 59 of 2016)
  • Abelle Asuman v Uganda (Criminal Appeal No. 66 of 2016)
  • Ogalo s/o Owoura v R (1954) 21 EACA 126
  • Pandya v R (1957) EA 336
  • Kifamunte Henry v Uganda (Criminal Appeal No. 10 of 1997)
  • Rwabugande Moses v Uganda (Criminal Appeal No. 25 of 2014)
  • Livingstone Kakooza v Uganda (Criminal Appeal No. 17 of 1993)
  • Kyalimpa Edward v Uganda (Criminal Appeal No. 10 of 1995)
  • Kiwalabye Bernard v Uganda (Criminal Appeal No. 143 of 2001)
  • Nashimolo Paul Kibolo v Uganda (Criminal Appeal No. 46 of 2017)
  • Kizito Senkula v Uganda (Criminal Appeal No. 24 of 2001)
  • Kabuye Senyano 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.