Nkcosolwana Funiwe v Uganda (Criminal Appeal No. 390 of 2017)

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

On a second appeal against sentence only, the Court of Appeal held that s.4(2)(a) of the Narcotic Drugs and Psychotropic Substances (Control) Act 2015 provides for a fine, with imprisonment as the default alternative. Because the market value of the drugs had not been ascertained by a proper officer under s.91, the fine fell to be computed at the statutory minimum of 500 currency points. The first appellate judge erred by imposing 10 years' imprisonment rather than exercising the option of a fine, especially for a first offender. Acting under s.11 of the Judicature Act, the court set aside the 10-year sentence and substituted a fine of UGX 10,000,000, with 10 years' imprisonment in default.

Outcome

Appeal against sentence allowed; 10-year custodial sentence set aside and substituted with a fine of UGX 10,000,000 in default of which 10 years' imprisonment.

Facts

On 21 November 2016 the appellant was intercepted at the departures lounge of Entebbe International Airport and, on being searched, was found in unlawful possession of 0.8 kg of cocaine, locally valued at UGX 227,520,000. She was convicted on her own plea of guilty before the Chief Magistrate's Court of Entebbe and sentenced to a fine of UGX 150,000,000 or 10 years' imprisonment in default. On appeal, the High Court found the Chief Magistrate had no basis for imposing a fine of that magnitude because the market value of the drugs had not been ascertained under s.91 of the Narcotic Drugs and Psychotropic Substances (Control) Act 2015. The High Court set aside the fine and sentenced the appellant to 10 years' imprisonment without the option of a fine. The appellant, a first offender, appealed to the Court of Appeal against sentence only, contending it was manifestly harsh.

Issues

1. Whether the sentence of 10 years' imprisonment imposed by the first appellate court was manifestly harsh or founded on a wrong principle of law.
2. Whether, under s.4(2)(a) of the Narcotic Drugs and Psychotropic Substances (Control) Act 2015, a custodial sentence may be imposed where the option of a fine should have been exercised and the market value of the drugs was not ascertained under s.91.

Orders

• The sentence of 10 years' imprisonment imposed by the High Court set aside.
• Appellant sentenced to a fine of UGX 10,000,000, in default of which she will serve 10 years' imprisonment.

Rules and key headnotes

Legislation cited (6)

• Narcotic Drugs and Psychotropic Substances (Control) Act 2015 s.4(1)
• Narcotic Drugs and Psychotropic Substances (Control) Act 2015 s.4(2)(a)
• Narcotic Drugs and Psychotropic Substances (Control) Act 2015 s.91
• Trial on Indictments Act, Cap 23 s.132(1)(b)
• Criminal Procedure Code Act, Cap 116 s.45(1)
• Judicature Act, Cap 13 s.11

Cases cited (9)

• Johnson Abaasa v Uganda (Criminal Appeal No. 33 of 2010)
• Alex Njuguna Kimani v R (Criminal Appeal No. 65 of 2012)
• Henry Kifamunte v Uganda (Criminal Appeal No. 10 of 1997)
• Tigo Stephen v Uganda (Criminal Appeal No. 8 of 2009)
• James v R (1950) 18 E.A.C.A 147
• Ogalo s/o Owoura v R. (1954) 24 E.A.C.A 270
• Kizito Senkula v Uganda (Criminal Appeal No. 24 of 2001)
• Bashir Ssali v Uganda (Criminal Appeal No. 40 of 2003)
• Ninsiima Gilbert v Uganda (Criminal Appeal No. 180 of 2010)

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.

• Wabyona Jackson v Uganda (Criminal Appeal No. 40 of 2023)

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