Opolot Ben v Uganda (Criminal Appeal 70 of 2023) [2026] UGSC 13 (11 April 2026)

5 10 15 20 25 30 THE REPUBLIC OF UGANDA IN THE SUPREME COURT OF UGANDA AT KAMPALA (CORAM: TIBATEMWA- EKIRIKUBINZA, TUHAISE, CHIBITA, MUSOTA, KIBEEDI, JJSC) CRIMINAL APPEAL NO. 70 OF 2023 BETWEEN OPOLOT BEN ::::::::::::::::::::::::::::::::::::::::::::::::::::: APPELLANT AND UGANDA ::::::::::::::::::::::::::::::::::::::::::::::::::::::::: RESPONDENT (An appeal from the judgment of the Court of Appeal (Obura; Bamugemereire; and Madrama; JJA) dated 10 th February, 2023 in Criminal Appeal No. 131 of 2017.) JUDGMENT OF THE COURT This is a second appeal against sentence arising from the decision of the Court of Appeal which overturned the sentence of 49 years ’ imprisonment imposed on the appellant by the High Court in Criminal Case No. 117 of 2016, reducing it t to 30 years ’ for the offence of Murder c/s 188 and 189 of the Penal Code Act. BACKGROUND: On 21/03/2016, the appellant murdered his girlfriend one Aleper Christine with whom he had a child. Together with another individual, he conspired to kill her since she was playing love games between them. They subsequently strangled her to death. The appellant was subsequently arrested and convicted on his own plea 1 5 10 15 20 25 30 of guilty. He was sentenced to 49 years ’ imprisonment. Dissatisfied, he appealed to the Court of appeal on grounds that the sentence was illegal and harsh. The Court of Appeal found that the sentence was illegal since the learned Judge did not consider the period spent on remand. The learned Justices set aside the sentence and substituted it with a term of 32 years ’ imprisonment. They deducted a period of 2 years spent on remand and subsequently sentenced him to 30 years ’ imprisonment from the date of conviction. Hence this appeal. The appellant ’ s ground of appeal is that; 1. The learned Justices of Appeal erred in law and fact when they substituted an illegal sentence with another illegal sentence without considering the time the appellant spent on remand. The appellant prayed that the appeal is allowed. REPRESENTATION: At the hearing, the appellant was represented by Ms. Nakasande Mary Rose, whereas Ms. Margaret Nakigudde, Assistant Director of Public Prosecutions represented the respondent. SUBMISSIONS: APPELLANT'S SUBMISSIONS Counsel for the appellant submitted that although the learned Justices took into account the period spent on remand as required by the law, the deductions were not correct hence making the sentence illegal. Counsel contended that the learned Justices deducted 2 years as the period the appellant had spent on remand from the 32-year sentence, resulting into a term of 30 year ’ s imprisonment commencing from the date of conviction of 13.04.2018. This was erroneous. 2 s Counsel submitted that the date of conviction was 13.04.2017 and not 13.04.2018. He contended that the plea taking proceedings commenced on 13.04.2017 and were never adjourned. Furthermore, the commitment warrant signed by the trial judge and addressed to the superintendent of prison was dated 13.04.2017. io Therefore, the conviction date of 13.04.2018 appearing on the record of proceedings was a typing error and the learned Justices incorrectly relied on it. Counsel further affirmed his argument pointing out that the appeal to the Court of Appeal was filed in 2017 vide Criminal Appeal No. 15 131 f 2017. He could not have appealed before being convicted and sentenced. Counsel therefore submitted that this error was a material factor that the Court overlooked and therefore the sentence of 32years is illegal. Counsel relied on Article 23(8) of the Constitution, Rule 20 15(2) of the Constitution (Sentencing Guidelines for Courts of Judicature) Practice Directions, 2023 and the cases of Rwabugande Moses v Uganda. No. 25 of 2014(SC), Kiwalabye Bernard v Uganda. No. 143 of 2001 to support his submission. Counsel prayed that the appeal is allowed and the appellant ’ s 25 remand period be deducted from the final sentence the court considers appropriate starting from the date of conviction of 13.04.17. RESPONDENT ’ S SUBMISSIONS Counsel for the respondent conceded that there were mix ups on 30 the conviction dates from which the deduction was applied. Counsel contended that the period from 21.03.2016 to 13.04.2017 constitutes one year and not two years spent on remand. He argued that since the sentence of 32 years was not faulted, Court should deduct one year of the remand period, resulting into a final term of 35 31 years ’ imprisonment from the date of conviction which is 13.04.2017. 3 5 10 15 20 25 30 35 Counsel invited court to find that the learned Justices were compliant with the principle in Rwabugande Moses (Supra) but needed to deduct one year from the right date of conviction. Counsel prayed that the appellant serves 31 years of imprisonment as the legal sentence. CONSIDERATION OF COURT We have addressed ourselves to the record, submissions and authorities cited by counsel. In sentencing matters, it is settled in a number of cases that the Court is constrained by section 5(3) of the Judicature Act to consider only legal issues, rather than the severity of the sentence. See: Twinomuhangi Dominic V Uganda [2025] UGSC 40. It is also firmly established that an appellate court will only interfere with a sentence where court acted on wrong principles or overlooked material factors or on the whole the sentence is illegal. See: Rwabugande Moses v Uganda [2017] UGSC 8 and Gabiri Kasimu v Uganda [2024] UGSC 46. The gist of this case is the arithmetic deduction of the remand period from the date of conviction. Both counsel argue that there was a mix up of the date of conviction which in turn also affected the deduction of the period spent on remand. We note that the appellant successfully challenged the sentence in the Court of Appeal, arguing that his remand period was not considered. The learned Justices recognized this illegality and imposed a 32-year sentence on the appellant, deducting two years of the remand period from the overall sentence. Nevertheless, they mistakenly subtracted this duration and based it on an incorrect conviction date of 13.04.2018, ultimately imposing a sentence of 30 years ’ imprisonment. They obseiwed as follows: “ We find that the learned trial judge did not consider the period spent on remand as enjoined by Article 23(8) of the 4 5 10 15 20 25 30 35 Constitution and in the premises the sentence is illegal as was held by the Supreme Court in Rwabugande Moses v Uganda (Supra). We therefore set it aside for that reason and invoke the powers of this court under section 11 of the Judicature Act to sentence the appellant afresh...We find a sentence of 32 years appropriate given the circumstances in which the offence was committed ....... In compliance with Article 23(8) of the Constitution, we deduct the period of 2 years the appellant spent on remand and sentence him to 30 years* imprisonment. The sentence shall run from the date of conviction that is 13/04/2018 ... ’ * emphasis added. A perusal of the record confirms that the appellant was convicted on 13.04. 2017. The record of proceedings at the High Court indicated 13.04.2017 as the date the case was heard. It did not indicate that the matter was adjourned at any point; rather, the court proceeded to sentence the appellant on that same day. Unfortunately, the sentencing date recorded was erroneously noted as 13.04.18, which the learned Justices used to calculate the time spent on remand. In our view this was an inadvertent slip especially since the appellant's appeal to the Court of Appeal was filed in 2017. The Judgment of the Court indicated that the appeal was Criminal Appeal No. 131 of 2017 and arose from Criminal Session Case No. 117 of 2016 delivered on the 13/04/2017. The background still indicated that the appellant was convicted on 13/04/2017. We note that the date of arrest was not disputed. The Judgment indicated that the appellant committed the offence on 21.03.2016 and the medical examination report showed that the appellant was arrested on 23.03.2016. This alludes that the appellant spent approximately 1 year and 21 days in police custody and remand. We therefore find that though the learned Justices followed the law as required under Article 23(8) of the Constitution, Rule 15(2) of 5 5 10 15 20 25 30 35 the Constitution (Sentencing Guidelines for Courts of Judicature) Practice Directions, 2023 and the case of Rwabugande Moses v Uganda. [2017] UGSC 8, to take into account the period spent on remand and arithmetically deduct the same, they only erroneously miscalculated this period and relied on an incorrect date of conviction thereby making the sentence illegal. Having rightly imposed an appropriate sentence of 32 years ’ imprisonment considering the circumstances, the deduction for the time spent on remand should have been 1 year and 21 days, rather than the two years calculated by the learned Justices. This would result in an approximate total of 30 years, 11 months, and 4 days. We therefore deduct the remand period of lyear and 21 days and sentence the appellant to 30 years llmonths and 4 days. The sentence shall run from the date of conviction, that is 13/04/2017. Disposition 1. The appeal is allowed. 2. The sentence of 30 years ’ imprisonment from 13/04/2018 imposed on appellant by the Court of Appeal is hereby set aside. 3. The appellant shall serve a term of imprisonment of 30 years llmonths and 4 days from the date of conviction, that is 13/04/2017. We so order. Dated at Kampala this.{p.iV.day of I:p. 2026 V > v )<■ < v V — Prof. Lillian Tibatemwa-Ekirikubinza JUSTICE OF THE SUPREME COURT 6 5 10 15 20 Percy Night Tuhaise JUSTICE OF THE SUPREME COURT Mike J. Chibita JUSTICE OF THE SUPREME COURT Stephen Musota JUSTICE OF THE SUPREME COURT Muzamiru M. Kibeedi JUSTICE OF THE SUPREME COURT 7