Kwamusi Jacob v Uganda [2017] UGSC 33

Observed later treatment

No later-treatment classification is recorded for this judgment.

Citator coverage is limited to judgments in the Wakilii corpus and source-matched treatment records. Absence of a signal is not an assertion that the case remains good law.

Holding

The Supreme Court allowed the appeal. Where a sentence is declared illegal for failing to take account of remand time as required by Article 23(8) of the Constitution, no sentence stands, and the appellate court may resentence as a court of original jurisdiction. However, natural justice requires that before imposing a sentence harsher than the one set aside, the court must give the appellant an opportunity to be heard on the proposed higher sentence. The Court of Appeal failed to do so, so its fresh twelve-year sentence was itself a nullity. The Court set aside that sentence and, as the appellant had already served over nine years, ordered his immediate release.

Outcome

Sentence set aside; immediate release of the appellant ordered

Facts

The appellant was convicted by the High Court of manslaughter on his own plea of guilty and sentenced to ten years' imprisonment. He appealed to the Court of Appeal solely against sentence, contending that the trial judge had not taken into account the one and a half years he had spent on remand. The Court of Appeal agreed that the trial judge had failed to comply with Article 23(8) of the Constitution, declared the ten-year sentence illegal and a nullity, set it aside, and under section 11 of the Judicature Act imposed a fresh sentence of twelve years after accounting for the remand period. The appellant then appealed to the Supreme Court, arguing that the Court of Appeal had unlawfully enhanced his sentence in the absence of any cross-appeal by the respondent. By the time of the Supreme Court hearing the appellant had been in custody for slightly over nine years.

Issues

1. Whether the Court of Appeal, on its own volition and in the absence of a cross-appeal by the respondent, had power to enhance the appellant's sentence from ten years to twelve years.

Orders

• Appeal allowed.
• The sentence of twelve years imposed by the Court of Appeal is set aside.
• The immediate release of the appellant is ordered if he has not already been released.

Rules and key headnotes

Legislation cited (6)

• Constitution of Uganda Article 23(8)
• Judicature Act s.11
• Trial on Indictments Act s.132
• Trial on Indictments Act s.132(1)(d)
• Criminal Procedure Code Act s.34
• Court of Appeal Rules r.32(1)

Cases cited (4)

• Mugasa v Uganda (Criminal Appeal No. 10 of 2010)
• Busiku v Uganda (Criminal Appeal No. 33 of 2011)
• Weitire Asanisio v Uganda (Criminal Appeal No. 11 of 2010)
• Rwabugande v Uganda (Criminal Appeal No. 25 of 2014)

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