Wakilii

Ntihabose v Uganda (Criminal Appeal No. 0093 of 2011)

Court of Appeal · [2018] UGCA 88 · 2018 Sentence Reduced AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Criminal appeal against sentence only from High Court murder conviction
Decision
Sentence set aside as illegal and substituted with 23 years and 3 months' imprisonment running from 29 April 2011

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

The Court of Appeal held that the trial Judge's failure to take into account the 1 year and 9 months the appellant spent on remand, as mandated by Article 23(8) of the Constitution, rendered the 30-year sentence illegal. The Court set aside the sentence and, exercising its powers under section 11 of the Judicature Act, re-sentenced the appellant to 25 years' imprisonment, deducting the period on remand to arrive at 23 years and 3 months. The Court found that the trial Judge had in fact considered both aggravating and mitigating factors, so the sentence was not separately faulted as harsh and excessive, but interference was warranted on the ground of illegality.

Outcome

Sentence set aside as illegal and substituted with 23 years and 3 months' imprisonment running from 29 April 2011

Facts

The appellant and the deceased, Nsekerabanzi Lydia, were husband and wife. On 25th June 2009 at their home in Buhozi Village, Kisoro District, the appellant, armed with a panga, took hold of the deceased and cut her several times on the head, arms, chest and thighs. The deceased raised an alarm which attracted people to her rescue, including the LC1 Chairman Rukera Ronald and Kishakiye Kellen, who found the appellant cutting his wife. The matter was reported to Police, the appellant was arrested, and the panga was recovered and tendered in evidence. In his charge and caution statement, the appellant confessed to cutting his wife to death. A post-mortem found the cause of death to be haemorrhagic shock due to several deep cuts. The appellant was examined and found to be of sound mind. He was convicted of murder and sentenced to 30 years' imprisonment, having spent 1 year and 9 months on remand prior to sentencing.

Issues

  1. Whether the trial Judge's failure to take into account the period spent on remand rendered the sentence illegal under Article 23(8) of the Constitution.
  2. Whether the sentence of 30 years' imprisonment was harsh and excessive in the circumstances.

Orders

  • Sentence of 30 years' imprisonment set aside as illegal.
  • Appellant sentenced afresh to 25 years' imprisonment.
  • Period of 1 year and 9 months spent on remand deducted, leaving a sentence of 23 years and 3 months.
  • Sentence to run from 29th April, 2011, the date of conviction by the High Court.

Rules and key headnotes

Sentencing — Remand Period — Mandatory Deduction under Article 23(8)
A sentence arrived at without taking into consideration the period spent on remand is illegal for failure to comply with the mandatory constitutional provision in Article 23(8) of the Constitution.
Sentencing — Appellate Interference with Sentence
An appellate court will not normally interfere with the sentencing discretion of the trial Judge unless the sentence is illegal in law or is manifestly so excessive or so low as to amount to a miscarriage of justice.
Article 23(8) — Period in Lawful Custody to be Taken into Account
Where a person is convicted and sentenced to imprisonment, the period spent in lawful custody before completion of trial must be taken into account specifically, along with other relevant factors, before the court pronounces the term to be served.
Appellate Re-sentencing — Powers under Section 11 Judicature Act
On finding a sentence illegal, the Court of Appeal may exercise its discretion under section 11 of the Judicature Act, which confers the same powers as the trial court, to impose a sentence it considers appropriate.

Legislation cited (4)

Cases cited (7)

  • Rwabugande Moses v Uganda (Criminal Appeal No. 25 of 2014)
  • Magara Ramathan v Uganda (Criminal Appeal No. 01 of 2014)
  • Kyalimpa Edward v Uganda (Criminal Appeal No. 10 of 1995)
  • Ogalo s/o Owoura V R (1954) 21 EACA 270
  • Kabwiso Issa V Uganda (2001-2005) HCB 20
  • Mbunya Godfrey v Uganda (Criminal Appeal No. 4 of 2011)
  • Tumwesigye Anthony v Uganda (Criminal Appeal No. 46 of 2012)

Full judgment

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

Ntihabose Vs Uganda (Criminal Appeal No. 0093 of 2011) [2018] UGCA 88 (2 October 2018)
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.