Wakilii

Kizza & Anor v Uganda (Criminal Appeal No. 188 of 2013)

Court of Appeal · [2020] UGCA 134 · 2020 Appeal Allowed (Sentence Reduced) AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Criminal appeal against sentence from a High Court re-sentencing decision (post-Kigula)
Decision
Life sentences set aside; each appellant sentenced to 41 years and 6 months' imprisonment from 23 May 2007

Observed later treatment

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Holding

The Court of Appeal held that, on re-sentencing after Kigula, a court must consider only mitigating and aggravating factors available at the time of conviction and disregard events occurring between conviction and re-sentencing. The re-sentencing Judge failed to deduct the period spent on remand as required by Article 23(8) of the Constitution, rendering the life sentence illegal, and the sentence was also harsh and excessive. The Court set aside the life sentences and, following comparable murder precedents, substituted 45 years' imprisonment for each appellant, less 3 years and 6 months spent on remand, giving 41 years and 6 months from 23 May 2007. The appeal against sentence was allowed.

Outcome

Life sentences set aside; each appellant sentenced to 41 years and 6 months' imprisonment from 23 May 2007

Facts

On 14 December 2003 at Kyembogo I Cell, Mbarara District, the appellants, brothers, attacked their father Bakanyomera John at his home with a panga, cutting him on the head and throat and causing his instant death from severe haemorrhage. A month before the murder the appellants had also attacked their father, an incident reported to the LC1 chairman. The deceased's widow, who was not the appellants' biological mother, and other children were left without support. The appellants were arrested, tried and, on 23 May 2007, convicted of murder and sentenced to the then mandatory death penalty. Following the Supreme Court decision in Attorney General v Susan Kigula holding the mandatory death sentence unconstitutional, the matter was remitted to the High Court, which on 9 December 2013 re-sentenced each appellant to imprisonment for the rest of his natural life. The appellants appealed against sentence.

Issues

  1. Whether the re-sentencing Judge erred in imposing life imprisonment based on a wrong principle by failing to observe consistency and uniformity in sentencing.
  2. Whether the re-sentencing Judge overlooked material factors, including the period spent on remand prior to conviction.
  3. Whether the sentence of imprisonment for the rest of each appellant's life was manifestly harsh and excessive.
  4. Whether a re-sentencing court may take into account factors that arose between conviction and re-sentencing.

Orders

  • Leave to appeal against sentence only granted.
  • Appeal as to sentence allowed.
  • Sentence of imprisonment for the rest of each appellant's life set aside.
  • Each appellant sentenced to 45 years' imprisonment, less 3 years and 6 months spent on remand, to serve 41 years and 6 months from 23 May 2007.

Rules and key headnotes

Sentencing — Re-sentencing after Kigula — Relevant factors confined to time of conviction
On re-sentencing following the abolition of the mandatory death penalty, a court must consider only those mitigating and aggravating factors that were available to the sentencing judge at the time of conviction, and must disregard factors, whether mitigating or aggravating, that arose between conviction and re-sentencing.
Sentencing — Deduction of period on remand — Article 23(8) of the Constitution
A sentencing court is constitutionally required under Article 23(8) to take into account and deduct the period an accused actually spent in lawful custody on remand before conviction; failure to do so renders the sentence illegal.
Sentencing — Appellate interference — Wrong principle or excessive sentence
An appellate court will only interfere with a sentence where it is illegal or founded on a wrong principle, where the trial court failed to consider a material factor, or where the sentence is manifestly excessive or so low as to amount to a miscarriage of justice.
Sentencing — Consistency and uniformity — Guidance from comparable precedents
In passing sentence a court should, so far as circumstances permit, follow the principle of uniformity and consistency so that sentences bear resemblance to those in previous cases of similar facts, while recognising that no two crimes are identical.

Legislation cited (7)

Cases cited (10)

  • Attorney General v Susan Kigula and 417 Others (Constitutional Appeal No. 3 of 2006)
  • Mbunya Godfrey v Uganda (Criminal Appeal No. 4 of 2011)
  • Akbar Hussein Godi v Uganda (Criminal Appeal No. 3 of 2013)
  • Bandebaho Benon v Uganda (Criminal Appeal No. 319 of 2014)
  • Livingstone Kakooza v Uganda (Criminal Appeal No. 17 of 1993)
  • Bukenya Stephen v Uganda (Criminal Appeal No. 51 of 2007)
  • Kifamunte Henry v Uganda (Criminal Appeal No. 10 of 1997)
  • Bashir Ssali v Uganda (Criminal Appeal No. 40 of 2003)
  • Bakubye Muzamiru & Jjumba Tamale Musa v Uganda (Criminal Appeal No. 56 of 2015)
  • Abaasa Johnson & Muhwezi Siriri v Uganda (Criminal Appeal No. 54 of 2016)

Full judgment

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The original judgment as reported. Read the original PDF before relying on any passage.

Kizza & Anor v Uganda (Criminal Appeal No. 188 of 2013) [2020] UGCA 134 (20 November 2020)
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.