Mutebi v Uganda (Criminal Appeal No. 383 of 2019)

Observed later treatment

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 Court of Appeal held that the trial court's sentence of 23 years' imprisonment for aggravated defilement was illegal because it failed to take into account the two years and six months the appellant spent on remand, contrary to Article 23(8) of the Constitution. The Court set aside the sentence, exercised its powers under section 11 of the Judicature Act to re-sentence, and after weighing the aggravating and mitigating factors arrived at a 23-year sentence, from which it deducted the remand period, imposing 20 years and 6 months' imprisonment.

Outcome

Sentence set aside and substituted with 20 years and 6 months' imprisonment after deducting remand period

Facts

The six-year-old victim lived with her grandmother at Lukonge village, Kayabwe in Mpigi district, where the appellant was their neighbour separated by only one house. On 15 October 2017 the grandmother discovered the victim was emitting a foul smell and continuously falling sick. The victim's friends and eventually the victim herself revealed she had been defiled by the appellant, who had threatened to cut her if she told anyone. She stated he took her to his house around 1:00 pm as she returned from school, placed her on his bed, put cello tape on her mouth and defiled her. The matter was reported to police and the appellant was arrested. Examination revealed the appellant was HIV positive, leading to charges of aggravated defilement. He was tried and convicted in the High Court and sentenced to 23 years' imprisonment. He appealed only against sentence.

Issues

1. Whether the sentence of 23 years' imprisonment was illegal for failing to take into account the period spent on remand under Article 23(8) of the Constitution.
2. Whether the sentence was manifestly harsh and excessive in the circumstances.

Orders

• Sentence of 23 years' imprisonment set aside as illegal.
• Appellant re-sentenced to 20 years and 6 months' imprisonment running from 26 September 2019.

Rules and key headnotes

Legislation cited (7)

• Judicature Act s.11
• Penal Code Act s.129(3) and (4)
• Trial on Indictments Act s.86(4)
• Constitution of the Republic of Uganda 1995 art.23(8)
• Constitution (Sentencing Guidelines for Courts of Judicature) (Practice) Directions 2013 Principle 15
• Constitution (Sentencing Guidelines for Courts of Judicature) (Practice) Directions 2013 Paragraph 6(1)
• Judicature (Court of Appeal Rules) Directions S.I 13-10 Rule 30(1)(a)

Cases cited (14)

• Kifamunte Henry v Uganda (Criminal Appeal No. 10 of 1997)
• Kiwalabye Bernard v Uganda (Criminal Appeal No. 143 of 2001)
• Tamale Richard v Uganda (Criminal Appeal No. 19 of 2012)
• Rwabugande Moses v Uganda (Criminal Appeal No. 25 of 2014)
• Kamya Johnson Wavamunno v Uganda (Criminal Appeal No. 16 of 2000)
• Kyalimpa Edward v Uganda (Criminal Appeal No. 10 of 1995)
• Nashimolo Paul v Uganda (Criminal Appeal No. 46 of 2017)
• Bulila Christiano and Another v Uganda (Criminal Appeal No. 61 of 2015)
• Ojangole Peter v Uganda (Criminal Appeal No. 34 of 2017)
• Sekitoleko Judah and Another v Uganda (Criminal Appeal No. 33 of 2014)
• Bukenya Joseph v Uganda (Criminal Appeal No. 17 of 2010)
• Abelle Asuman v Uganda (Criminal Appeal No. 66 of 2016)
• Segawa Joseph v Uganda (Criminal Appeal No. 65 of 2016)
• R vs Haviland (1983) 5 Cr. App. R(s) 109

Cases citing this judgment (1)

How later Ugandan judgments in the Wakilii corpus have cited this case. Treatment labels come from Sequitur — Uganda’s citator — each backed by a verbatim span from the citing judgment, and are not an assertion that this case is, or is not, good law.

• Mugisina Joseph v Uganda (Criminal Appeal No. 431 of 2017)

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