Uwihayimaana Molly v Uganda (Criminal Appeal No. 37 of 2015) [2026] UGSC 17 (21 April 2026)

THE REPUBLIC OF UGANDA IN THE SUPREME COURT OF UGANDA AT KAMPALA CRIMINAL APPEAL No. 37 of 2O15 [CORAM: TIBATBMWA.EKIRIKUBIMZA; TTTHAISE; CHIBITA; MUSOKE ; KIBEEDI; J..rSC/ 10 IIWIHAYIMAANA MOLLY VERSUS UGANDA... ........ RESPONDENT (An appeal from the Judgment of the Court of Appeal Kasule, Buteera, Ka dated, 16 , Apit, 2O1 5 in Criminal Appeal No. 1O3 of 2OO9) ruru; uNnF 15 20 JUDGMENT OF THE COURT This is a second appeal from the decision of the Court of Appeal, which upheld the appellant's conviction by the High Court for murder contrary to Sections 188 and 189 ofthe Penal Code Act and sentenced her to death. Dissatisfied with the sentence, the appellant appealed to the Court of Appeal on conviction and sentence. However, during the hearing of that appeal, the appellant sought leave to appeal against sentence only, which was granted. The Court of Appeal set aside the death sentence and substituted it with 30 years' imprisonment. 1 25 5 APPELLANT 5 The appellant now contends that the Court of Appeal erred in failing to deduct, arithmetically, the period she spent on remand. Representation At the hearing of the appeal, Ms. Robinah Kyamuhangire represented the appellant while Mr. Charles Richard Kaamuli Assistant Dpp, represented the respondent. , .,.iL U Submissions of the Appellant 10 15 20 25 \P Counsel for the appellant submitted that, in accordance with Article 23(8) of the Constitution and the precedent established in Rwabugande Moses v Uganda 120171 UGSC 1), courts are constitutionally mandated to deduct the period an appellant has spent on remand. This deduction must be carried out with precise mathematical accuracy. Counsel further contended that the thirty (30) years'imprisonment imposed by the Court of Appeal was unlawful, as it failed to comply with the constitutional obligation under Article 23(8) of the Constitution. Submissions of the Respondent Counsel for the Respondent argued that the learned Justices of the Court of Appeal did take the period spent on remand into account and that a strict arithmetic calculation was not legally required. Counsel further submitted that Rwabugande Moses v Uganda (Supra), which pre dates the Court of Appeal's decision in this matter, could not have guided the Court of Appeal. 2 s Court'sConsideration. The jurisdiction of this Court to hear criminal appeals is derived from Section 5 of the Judicature Act. This provision empowers the Court to determine appeals involving matters of law, as well as mixed questions of law and fact, in criminal cases where the offence is punishable by death. However, in cases where the offence does not attract the death penalty, the jurisdiction of this Court is limited to appeals that rais "nP questions of law only. 10 15 20 25 The rationale underlying this restrictive approach to appeals against sentence lies partty in the discretionary nature of sentencing. Sentencing is primarily a matter within the competence of the trial court, which exercises its discretion after considering the circumstances of each case. The position of this Court has been cleatly articulated in Kiwalabye Bernard v Uganda SCCA No. 143 of 2OO1' where it was held that an appellate court will only interfere with a sentence imposed by the trial court if it is shown that the court acted on a wrong principle of law, overlooked a materia-l fact, or imposed a sentence that is manifestly harsh and excessive in light of the circumstances of the case' It is important to note that the power of this Court to hear and determine criminal appeals against sentence is specifically provided for under Section 5(3) of the Judicature Act, which states as follows: "ln the case of on appeal against a sentence and an order other than one fued bg lau, the accused person maA appeal to the 3 5 Supreme Court against the sentence or order, on a matter of law, not includinq the seueit u of the sentence." (emphasis added) The alleged illegality in this appeal is that the trial court did not comply with Article 23(8) of the Constitution which provides as follows: "Where a person is conuicted and sentenced to a term of imprisonmentfor an offence, any peiod he or she spends in lawful custodg in respect of the offence before the completion of his or her tial shall be taken into account in imposing the term of impisonment." It is the appellant's contention that the sentence of 30 years' imprisonment imposed by the Court of Appeal on her is illegal because it did not take into account the one-and-a-half-year period the appellant had spent on remand. In Rwabugande Moses v Uganda (Supra), a decision delivered by this Court on March 03 2017, the Court made it clear that courts must calculate the period a convict has spent on remand and arithmetically subtract it from the total sentence. Merely stating that the period has been "taken into account" is no longer sufficient. This was to ensure compliance with Article 23(8) of the Constitution, and to provide precision and certainty in sentencing. However, it is important to note that the Court of Appeal Judgment in the matter before us was delivered on 16th day of April 2O15. This was before the 2Ol7 Rwabugande decision was delivered. It therefore follows that the Court of Appeal could not be bound to follow 10 15 20 25 n \:t t/ 4 5 Rwabugande, a decision delivered after the Court of Appeal's decision which is the subject of the appeal we are dealing with. In numerous decisions, this Court has reiterated that the decision in Rwabugande does not apply retrospectively. Accordingly, the principle established in that case cannot be applied to sentences that were lawfully passed before it was pronounced. In Abelle Assuman v Uganda [2018] UGSC 96, this Court held: The law pertaining prior to the celebrated Rwabugande judgment had been expressed by this Court in cases such as Bukenya Joseph v Uganda [2010] UGSC 10 wherein the Court stated as follows: "taking into consideration of the time spent on remand does not necessitate a sentencing Court to apply a mathemcttical formula." Thus in Kyaterekera George William v Uganda SCCA No. O4 of 2OL6, Court held that: "lt is onlg those cases that are decided after Rwabugande (supra) that should follow this Courts position of the law in Rwabugande made on 3'd of March 2017. 10 15 20 25 "A precedent has to be in eistence for it to be followed. The instant appeal is on a Court of Appeal decision of 20th December 2016. The Court of Appeal could not be bound to follow a decision of the Supreme Court of 03'd March 2017 coming aboutfour months after its decision. The case of Rutabugande (supra) would not bind 4p Courts for cases decided before the 3rd of March 2017." *fl \\-/ 5 The Court of Appeal Judgment in the instant case was deliuered on 3l.t March 2016, a gear before the position of the law changed in Rwabugande (supra). The Court of Appeal could not be bound to follow the decision in Ru-tabugande which was made afier its decision." In the matter before us, the learned Justices of Appeal, in passing sentence, observed as follows: "Taking into account both mitigating and aggrauating factors as set out eboue, including the fact that the appellant had spent one and half gears on remand, we consider a sentence of 30 gears' impisonment appropriate in the circumstances of this case. We therefore set aside the sentence of death imposed bg the trial court and substitute it with that of 3O gears' impisonment. 10 15 20 25 That sentence shall ntn fro passed bg the High Court." m the date the original sentence was 2 C}}1F The Court of Appeal in this case expressly stated that the period spent on remand was considered when determining the sentence. This was done in accordance with the position of the law at the time. Therefore, having carefully considered the submissions of the appellant, and the law applicable at the time, we find no merit in the contention that the Court of Appeal erred in failing to make a strict arithmetic deduction of the period the appellant spent on remand. The sentence of thirty (30) years' imprisonment was law{ul and properly imposed in accordance with the law as it then stood. 6 a 5 Accordingly, we find no merit in this appeal, which is hereby dismissed. Dated this day of ...[c-a^tr-e PROF. LILLIAN TIBATEMWA-EKIRIKUBINZA, JUSTICE OF THE SUPREME COURT. PERCY NIGHT TUHAISE JUSTICE OF THE SUPREME COURT CHIBITA JUSTICE OF THE SUPREME COURT ELIZABETH MUSOKE JUSTICE OF THE SUPREME COURT 2026 10 15 20 7 a A *\^o-^e\ t 5 MUZAMIRU MUTANGULA KIBEEDI JUSTICE OF THE SUPREME COURT 2l@", Delivered by the Registrar this o26 10 Registrar, Supreme Court. 15 8