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Sebunya & Another v Uganda (Criminal Appeal 40 of 2018)

Supreme Court · [2024] UGSC 40 · 2024 Appeal Dismissed ✦ AI-generated summary ↓ Download
Jurisdiction
Uganda
Case Type
Second appeal against sentence from a decision of the Court of Appeal
Decision
Appeal dismissed; Court of Appeal sentence of 25 years' imprisonment and accompanying orders upheld

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Holding

The Supreme Court dismissed the appeal. Where the Court of Appeal sets aside a trial sentence as illegal — here for failure to deduct the remand period under Article 23(8) of the Constitution — section 11 of the Judicature Act empowers it to exercise the original jurisdiction of the trial court and impose a proper sentence; remission for resentencing is not required where the record, mitigation and aggravating factors are complete. The Susan Kigula and Ambaa Jacob remission precedents were distinguishable as they turned on the mandatory death sentence. As a second appellate court confined to legality, the Court found the substituted 25-year sentence neither illegal nor manifestly excessive, and indeed lenient.

Facts

On 20 April 2010 at about 10.00 p.m. in Seeta Town, Mukono District, the appellants, using an iron bar, robbed a motorcycle (registration No. UDN 744 C, belonging to Kasujja Tom) from a boda boda rider, Okurut Daniel. The victim was severely injured, suffering brain trauma and airway obstruction, and was still receiving treatment by the time of conviction; the motorcycle was not recovered. The appellants were indicted, tried and convicted of aggravated robbery contrary to sections 285 and 286 of the Penal Code Act. The High Court sentenced each to 28 years' imprisonment and ordered them to pay compensation of shs. 2,000,000 to Kasujja Tom. On appeal against sentence, the Court of Appeal found that the trial judge had failed to deduct the three years the appellants spent on remand, rendering the sentence illegal; it set the sentence aside and substituted 25 years' imprisonment. Dissatisfied, the appellants appealed to the Supreme Court.

Issues

  1. Whether the Court of Appeal erred in re-sentencing the appellants rather than remitting the matter to the trial court for resentencing once it had set aside the trial sentence as illegal.
  2. Whether the Court of Appeal had power to sentence or re-sentence an appellant whose trial sentence had been declared illegal.
  3. Whether the appellants' sentence of 25 years' imprisonment was harsh and manifestly excessive.

Orders

  • The appeal is dismissed.
  • The sentence of the Court of Appeal and the orders therein are upheld.

Key headnotes

Sentencing — Appellate court's power to re-sentence under section 11 of the Judicature Act
Where an appellate court sets aside a trial sentence as illegal, section 11 of the Judicature Act empowers it to exercise the original jurisdiction of the trial court and impose an appropriate sentence, as the court of first instance could have done.
Sentencing — Remission to trial court for resentencing not mandatory
Remission of a case to the trial court for resentencing is not required in every case where the trial sentence is rendered illegal; where the record, the proceedings on allocutus and the mitigating and aggravating factors are complete, the appellate court may itself reverse the illegal sentence and impose a proper one.
Sentencing — Deduction of remand period under Article 23(8) of the Constitution
A sentencing court must deduct the period a convict has spent on remand from the term of imprisonment imposed; failure to do so renders the sentence illegal and may be corrected on appeal by setting it aside and substituting a lawful sentence.
Appeals — Scope of a second appeal against sentence
On a second appeal against sentence the Supreme Court is empowered to consider only the legality of the sentence and not its severity.
Sentencing — Grounds for appellate interference with sentencing discretion
An appellate court will interfere with the trial court's sentencing discretion only where the sentence is illegal, the court acted contrary to law or on a wrong principle, ignored material factors, took irrelevant considerations into account, or the sentence is manifestly excessive so as to amount to an injustice.
Sentencing — Distinguishing mandatory death sentence remission precedents
Decisions directing remission to the High Court for submissions in mitigation following the declaration that the mandatory death sentence is unconstitutional (Attorney General v Susan Kigula) are distinguishable from an ordinary appeal in which an illegal custodial sentence is corrected under section 11 of the Judicature Act.

Legislation cited (11)

  • Penal Code Act s.285
  • Penal Code Act s.286
  • Penal Code Act s.286(4)
  • Judicature Act s.7
  • Judicature Act s.11
  • Criminal Procedure Code Act cap.116 s.35
  • Trial on Indictments Act cap.23 s.132
  • Constitution Article 23(8)
  • Judicature (Court of Appeal Rules) Directions S.I 13-10 Rule 32
  • Judicature Act Rule 5(3)
  • Constitution (Sentencing Guidelines for Courts of Judicature) (Practice) Directions

Cases cited (11)

  • Attorney General v Susan Kigula & 417 Others (Constitutional Appeal No. 3 of 2006)
  • Yoda Atiku & Anor v Uganda (Criminal Appeal No. 20 of 2009)
  • Ambaa Jacob & Anor v Uganda (Criminal Appeal No. 10 of 2009)
  • Uganda v Waiswa Henry & 3 Ors (Criminal Session Case No. 420 of 2010)
  • Aliganyira Richard v Uganda (Criminal Appeal No. 19 of 2005)
  • Tumusiime Obed & Anor v Uganda (Criminal Appeal No. 149 of 2010)
  • Amanda Alex v Uganda (Criminal Appeal No. 153 of 2014)
  • Kyalimpa Edward v Uganda (Criminal Appeal No. 10 of 1995)
  • Rwabugande Moses v Uganda (Criminal Appeal No. 25 of 2014)
  • Sekandi Hassan v Uganda (Criminal Appeal No. 25 of 2019)
  • Kamya Johnson Wavamuno v Uganda (Criminal Appeal No. 16 of 2000)
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.