Wakilii

Sseluwagi & 2 Others v Uganda (Criminal Appeal 67 of 2019)

Supreme Court · [2021] UGSC 57 · 2021 Appeal Partly Allowed ✦ AI-generated summary ↓ Download
Jurisdiction
Uganda
Case Type
Second criminal appeal to the Supreme Court from the Court of Appeal against conviction and sentence for murder
Decision
Conviction upheld; the Court of Appeal's illegal sentences were set aside and the appellants re-sentenced to 35 years (first and third appellants) and 20 years (second appellant) after deducting remand time, running from the date of conviction.

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Cited — treatment unverified cited in 2 (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

On a second appeal against conviction for murder, the Supreme Court held that the Court of Appeal correctly upheld the trial judge's reliance on the first appellant's charge and caution statement, even though it later went missing from the record, because it was before the trial court when considered. It struck out a ground alleging the second appellant was a juvenile, finding the age issue was never raised below and that he was 19. On sentence, severity alone cannot ground a second appeal; but the Court of Appeal's failure to deduct remand time under article 23(8) of the Constitution rendered its sentences illegal. The court set them aside and re-sentenced, deducting the remand period.

Facts

The three appellants were tried in the High Court at Masaka for murder, convicted, and sentenced to 80 years' imprisonment. The conviction rested substantially on the first appellant's charge and caution statement. Although the first appellant had earlier been on remand, he escaped from prison and made the statement after re-arrest while in police custody; it was admitted after a trial within a trial but later went missing from the court record. On first appeal, the Court of Appeal sustained the conviction but reduced the sentences to 35 years for the first and third appellants and 20 years for the second appellant. Neither the trial court nor the Court of Appeal deducted the time the appellants had spent on remand. The appellants were remanded on 8 November 2013; judgment was delivered on 31 May 2017 and sentencing on 5 June 2017, a remand period of 3 years and 7 months. The second appellant was 19 years old at the time of the offence.

Issues

  1. Whether the Court of Appeal rightly held that the trial judge was entitled to base his decision on the first appellant's charge and caution statement, notwithstanding that the statement later went missing from the record.
  2. Whether a ground of appeal could be founded on the second appellant having been a juvenile when that issue was never raised or canvassed in the courts below.
  3. Whether the severity of the sentences could be a ground of appeal in a second appeal.
  4. Whether the Court of Appeal's failure to take into account the time spent on remand rendered the sentences illegal, warranting interference and re-sentencing.

Orders

  • Grounds 1 and 2 of the appeal fail.
  • Ground 3 (juvenility of the second appellant) is struck out.
  • The sentences of 35 years' imprisonment imposed by the Court of Appeal on the first and third appellants and 20 years' imprisonment on the second appellant are set aside as illegal.
  • The first and third appellants shall serve 35 years' imprisonment and the second appellant 20 years' imprisonment, after deduction of the period spent on remand, running from the date of conviction.

Key headnotes

Evidence — Charge and Caution Statement — Statement Missing from Record on Appeal
An appellate court may determine whether a trial judge rightly relied on a charge and caution statement by ascertaining that the statement was before the trial court at the material time, even where the statement subsequently went missing from the record; access to the missing statement on appeal is not required.
Criminal Procedure — Appeals — Raising New Issues of Fact Not Canvassed Below
A ground of appeal cannot be founded on a matter of fact, such as an appellant's age, that was never raised, canvassed, or decided in the court below; where there is no decision of the lower court on the point, no appeal lies and the ground will be struck out.
Criminal Procedure — Second Appeal — Severity of Sentence Not a Ground
Under section 5(3) of the Judicature Act, the severity of a sentence cannot constitute a ground of appeal in a second appeal; only the legality of the sentence may be challenged.
Sentencing — Time Spent on Remand — Article 23(8) of the Constitution
A sentence imposed without taking into account the period the convict spent on remand, contrary to article 23(8) of the Constitution, is illegal and may be set aside on appeal, permitting the court to interfere with the sentencing court's discretion.
Sentencing — Re-sentencing — Arithmetical Deduction of Remand Period
When re-sentencing under section 7 of the Judicature Act, the court must determine the appropriate term and then arithmetically deduct the period spent on remand from that term, the resulting sentence running from the date of conviction.

Legislation cited (3)

  • Judicature Act s.5(3)
  • Judicature Act s.7
  • Constitution of Uganda art.23(8)

Cases cited (18)

  • Kifamunte Henry v Uganda (Supreme Court Criminal Appeal No. 10 of 1997)
  • Musoke vs R 1958 EA 715
  • Bogere Moses and Another v Uganda (Supreme Court Criminal Appeal No. 1 of 1997)
  • Tuwamoi vs Uganda (1967) 1 EA 84
  • Christopher Kasolo v Uganda (Supreme Court Criminal Appeal No. 15 of 1978)
  • Livingstone Kakooza v Uganda (Supreme Court Criminal Appeal No. 17 of 1993)
  • Kiwalabye Bernard v Uganda (Supreme Court Criminal Appeal No. 143 of 2001)
  • Tigo Steven v Uganda (Supreme Court Criminal Appeal No. 8 of 2009)
  • Okello Geoffrey v Uganda (Supreme Court Criminal Appeal No. 34 of 2014)
  • Mutatina Godfrey and Another v Uganda (Supreme Court Criminal Appeal No. 61 of 2015)
  • Wafula Robert v Uganda (Supreme Court Criminal Appeal No. 42 of 2017)
  • Nashimolo Paul Kibolo v Uganda (Supreme Court Criminal Appeal No. 46 of 2017)
  • Bukenya Joseph v Uganda (Supreme Court Criminal Appeal No. 17 of 2010)
  • Kyalimpa Edward v Uganda (Supreme Court Criminal Appeal No. 10 of 1995)
  • Kamya Johnson Wavamuno v Uganda (Supreme Court Criminal Appeal No. 16 of 2000)
  • Wamutabanewe Jamiru v Uganda (Supreme Court Criminal Appeal No. 74 of 2007)
  • Karisa Moses v Uganda (Supreme Court Criminal Appeal No. 23 of 2016)
  • Rwabugande Moses v Uganda (Supreme Court Criminal Appeal No. 25 of 2014)
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.