Ssekandi Zebron v Uganda (Criminal Appeal No. 46 of 2015) [2026] UGSC 11 (11 March 2026)

THE REPUBTIC OF UGANDA IN THE SUPREME COURT OF UGANDA AT KAMPALA CRIMINAL APPEAL NO. 046 OF 2015 SSEKANDI ZEBRON:::::::::::::::::::::::::::::::::::::::::::::::APPELLANT VERSUS UGANDA RESPONDENT (Appeal from the decision of the Court of Appeal (Kasule, Buteera and Tibatemwa' Ekirikubinza, JJA) dated lZh June, 2015 in Criminal Appeal No. 028 of 2010) CORAM: HON. HON. HON. HON. HON. MR. JUSTICE MIKE J. CHIBITA, JSC LADY JUSTTCE ELTZABETH MUSOKE, JSC MR. JUSTICE CHRISTOPHER MADRAMA IZAMA, JSC LADY JUSTICE CATHERINE BAMUGEMEREIRE, JSC LADY JUSTICE MONICA K. MUGENYI, JSC JUDGMENT OF THE COURT This appeal is against the decision of the Court of Appeal (Kasule, Buteera and Tibatemwa-Ekirikubinza, IJA) dismissing an appeal filed by the appellant against the decision of the High Court convicting him on two counts of Aggravated Defilement contrary to Section 129 (3) and 4 (a) of the Penal Code Act, Cap. 120 (2000 Revised Edition of the Laws of Uganda) and sentencing him to two consecutive sentences of 15 years and 17 years imprisonment, for a total of 32 years imprisonment. Background The appellant was charged with two counts of aggravated defilement related to allegations that he had, on 22nd February, 2008, performed sexual acts on two minor children, N.N aged 9 years and J.B aged 5 years at Buseke Village in Masaka District. The appellant pleaded guilty to the charges at the commencement of his trial before Kiggundu, J in the High Court sitting at Masaka. Thereafter, the learned State Attorney, on the invitation of the learned trial Judge, read the following facts. The appellant and the victims lived at Buseke village. On the fateful day, at around 4.00 p.m the victims 1 were on their way to fetch water from a well when they met with the appellant who offered to give them passion fruit juice if they followed him to his home, which they innocently did. On getting to the appellant's home, the appellant took turns to undress each of tlre victims and had sexual intercourse with both of them, Afterwards, at around 7.00 p.m, the victims continued to the well to fetch water which they carried to their respective homes. Upon arrival at her home, the victim J.B reported the incident with the appellant to her grandmother, who also notified the victim N.N's mother. Thereafter, J.B's grandmother and N.N's mother reported the incident to police resulting in the arrest of the appellant. After the appellant accepted that the above-stated facts were true, the learrred trial Judge convicted him on his own plea of guilty and imposed the sentences mentioned earlier. The appellant was dissatisfied with the sentences imposed by the learned trial Judge and appealed to the Court of Appeal but his appeal was dismissed. He brought this appeal against the decision of the Court of Appeal on the following grounds: "1) The learned Justices of the Court of Appeal erred in law and fact when they upheld the conviction and sentence of t5 years and 17 years on two counts of aggravated defilement contrary to the plea-bargaining agreement made between the appellant and the office of the Directorate of Public Prosecutions (sic). 2) The learned Justices of the Court of Appeal erred in law and fact when they upheld the sentence of 15 years imprisonment on Count l and 17 years imprisonment on Count 2 to serve the sentences consecutively without taking into account the period spent on remand and mitigation thus rendering the sentences illegal, manifestly harsh and excessive in the circumstances thereby occasioning a miscarriage of justice." The appellant prayed for the following orders: "a) The appeal be allowed. b) The order for consecutiye sentences be set aside and substituted with a more appropriate order." The respondent opposed the appeal. 2 Representation At the hearing of the appeal, Mr. Emmanuel Muwonge appeared for the appellant on State Brief. Mr, Charles Richard Kamuli, Assistant DPP represented the respondent. During the hearing, this Court made an order directing counsel for the appellant to file a supplementary memorandum of appeal, and for both counsel for the appellant and for the respondent to file written submissions based on the supplementary memorandum of appeal. The respective counsel duly complied with this Court's order. Appellant's submissions Counsel for the appellant abandoned ground 1 and only argued ground 2. Ground 2 In relation to ground 2, counsel for the appellant submitted that an order for concurrent sentences was appropriate in this case given that the appellant was convicted of two counts of the similar offence of aggravated defilement, Furthermore, counsel submitted that the Court of Appeal erroneously upheld the sentences imposed by the High Court on the appellant without taking into consideration the period he had spent on remand as enjoined by the provisions of Article 23 (8) of the 1995 Constitution whose import was explained in Rwabugande Moses vs. Uganda, Supreme Court CriminalAppeal No. 25 of 2Ot4. Respondent's submissions Counsel for the respondent, also, only argued ground 2 of the appeal, Ground 2 Counsel for the respondent submitted that ground 2 raises three polnts which he itemized under the following heads: a) the legality of the consecutive sentences; b) manifest harshness and excessiveness of the consecutive sentences; and c) failure to account for the remand period. 3 Regarding the legality of the consecutive sentences, counsel submitted that the Justices of Appeal acted within the law when they upheld the consecutive sentences imposed by the High Court on the appellant. He referred to the provisions of Section 3 (2) and 121 of the Trial on Indictments Act, Cap. 25 (2023 Revised Edition of the Laws of Uganda) which, read together, give the High Court the discretion to order consecutive sentences. He also referred to this Court's decision in Magala Ramathan vs. Uganda, Criminal Appeal No. 145 of 2OO9 (unreported) which explained that, pursuant to Section 3 (2) above, the High Court has discretion in determining whether or not to make an order for consecutive sentences. Counsel contended that the learned trial Judge had rightly made an order for consecutive sentences upon the justification that the appellant defiled two victims one after the other. Therefore, in counsel's view, the Court of Appeal rightly upheld the learned trlal Judge's order for consecutive serltences. With respect to whether the sentences imposed on the appellant were harsh and excessive, counsel for the respondent pointed out that the maximum sentence for the offence of aggravated defilement is death, Counsel also pointed out that the victims in this case were very young being 9 years and 5 years respectively. Counsel submitted that the sentences imposed on the appellant were instead lenient considering the circumstances of the case. He referred to cases where longer sentences were imposed for aggravated defilement such as Bacwa Benon vs. Uganda, Court of Appeal Criminal Appeal No. 809 of 2OL4 (unreported) where a sentence of life imprisonment was imposed where the victim was 10 years; and Kabuzi Isaac vs. Uganda, Court ofAppeal CriminalAppeal No. 286 of 2O15 (unreported) where a sentence of 32 years imprisonment was imposed in a case involving the defilement of two minors below the age of 14 years. With regard to the alleged failure to take the appellant's remand period into consideration, counsel submitted that the guidance laid down in the decision of Rwabugande Moses (supra) was inapplicable in this case because the respective decisions of the High Court (delivered on 29th March, 2010) and the Court of Appeal (delivered on 12th June, 2015) were delivered before the Rwabugande Moses decision. 4 Counsel made an alternative submission that if this Court sees it fit to apply the guidance laid out in the Rwabugande Moses decision, it should instead enhance the sentences imposed on the appellant since they are insufficient and contradict the sentencing ranges laid out in the Constitutiona! (Sentencing Guidelines for Courts of Judicature) (Practice) Directions, 2013 where the starting point for aggravated defilement is 35 years. Counsel submitted that in the present case, a sentence of life imprisonment would be appropriate. Consideration of the Appeal We have carefully studied the record of appeal, and also considered the submissions of the respective counsel and the law and authorities cited therein. This ls a second appeal against the decision of the Court of Appeal in a first appeal against the decision of the High Court imposing consecutive sentences of 15 years and 17 years imprisonment, for a total of 32 years imprisonment, upon convicting the appellant on two counts of aggravated defilement. Thus, we shall be mindful to discharge the duty of this Court in second appeals, which is to consider whether the Court of Appeal's conclusions on all matters, whether of law or fact, are correct. See: Kifamunte Henry vs. Uganda, Court of Appeal No. 10 of 1997 (unrepofted). As we noted earlier in this judgment, although the appellant's memorandum of appeal sets out two grounds of appeal, in his submissions, counsel for the appellant only argued ground 2 and abandoned ground 1. We shall therefore conduct a discussion of only ground 2, which was framed as follows: "The learned fustices ofthe Coult of Appeal erred in law and fact when they upheld the sentence of 15 years imprisonment on Count 1 and 17 years imprisonment on Count 2 to serve the sentences consecutively without taking into account the period spent on remand and mitigation thus rendering the sentences illegal, manifestly harsh and excessive in the circumstances thereby occasioning a miscarriage of justice." In ground 2, the appellant objects to the Court of Appeal's decision to uphold the consecutive sentences imposed by the trial Court, raising the following points of objection: flrst, that the Coutt of Appeal erred in upholding the 5 decision of the trial Court which was arrived at without considering the period the appellant had spent on remand; secondly, that the Court of Appeal erred in upholding the decision of the High Court which was made wlthout considering the mitlgating factors raised in favour of the appellant; thirdly, that the Court of Appeal erred in upholding manifestly harsh and excessive sentences imposed by the trial Court on the appellant. The fourth point, which arises in the submissions of counsel for the appellant, concerns the legality of the consecutive sentences imposed on the appellant by the trial Court and upheld by the Court of Appeal. We shall now turn to a dlscussion of these four points. In relation to the point on failure to consider the period spent by the appellant on remand, we reiterate the principle that Article 23 (8) of the 1995 Constitution obligates a sentencing Court to take into account the period spent by a convict in lawful custody while attending trial which is commonly known as the remand period, Article 23 (8) reads as follows: "(8) Where a person is convicted and sentenced to a term of imprisonment for an offence, any period he or she spends in lawful custody in respect of the offence before the completion of his or her trial shall be taken into account in imposing the term of imprisonment." There are two methods of "taking into account" for purposes of Article 23 (8). The first method is by arithmetical computation whereby the days spent on remand are ascertained and subtracted from the initial sentence before arriving at the final sentence. This method was explained in this Court's decision in Rwabugande Moses vs. Uganda, Supreme Court Crimina! Appeal No. 025 of 2014 (unreported) delivered on 3'd March, 2016. The second method is a non-arithmetical computation where the Court factors the remand period into the final sentence without conducting a mathematical computation. This method was explained in this Court's decision in Kizito Senkula vs. Uganda, Supreme Court Criminal Appeal No. 24 of 2001 (unreported) delivered on 19th December, 2002. We must observe that at the time of sentencing the appellant on 29th March, 2010, the sentencing Courts were applying the guidance laid down in the Kizito Senkula and were, therefore, not required to conduct a mathematical computation. They were only required to give some indication in their reasons that they had 6 considered the relevant remand perlod. In Kizito Senkula this Court stated as follows: "As we understand the provisions of article 23(8) of the Constitution, they mean that when a trial court imposes a term of imprisonment as sentence on a convicted person the court should take into account the period which the person spent in remand prior to his/her conviction. Taking into account does not mean an arithmetical exercise. Further, the term of imprisonment should commence from the date of convaction, not back-dated to the date when the convicted person first vvent into custody." In this case, the learned trial Judge explicitly stated in her judgment that she had taken into account the period that the appellant had spent on remand. She did not conduct a mathematical computation of the remand period, but this was unnecessary in light of the guidance given in the Kizito Senkula case. We therefore find that the learned trial Judge took into account the period that the appellant had spent on remand, in accordance with the recognized interpretation of Afticle 23 (8) at the time of her decision. Therefore, we reject the appellant's contrary submission. The appellant's second objection was that the Court of Appeal upheld a sentence imposed without taking into consideration the mitigating factors for the appellant. However, in his submissions, counsel for the appellant did not pursue this objection. Indeed, upon review of the record, we have found that the High Court and the Court of Appeal considered the only mitigating factor presented for the appellant which was that he was a first offender. The third objection by the appellant is concerned with the severity of the consecutive sentences totaling to 32 years imprisonment for the two counts of the offence of aggravated defilement that were imposed by the High Court and upheld by the Court of Appeal. The appellant alleges that the said sentences are harsh and excessive, This Court has in its recent decision of Odeke Peter and 2 Others vs. Uganda, Supreme Court Criminal Appeal No. 063 of 2019 (unrepofted) reiterated that, pursuant to Section 5 (3) of the ludicature Act, Cap. 16, no appeal lies to this coutt against severity of sentence. Therefore, the third objection is misplaced and we refrain from considering it, 1 The fourth objection by the appellant concerns the legality of the consecutive sentences imposed on the appellant. We observe that the power of the High Cout, as a sentencing Court, to impose consecutive sentences is granted under Section 3 (2) of the Trial on Indictments Act, Cap. 25 ("The TIA"): "(2) When a person is convicted at one trial of two or more distinct offences, the High Court may sentence him or her for those offences to the several punishments prescribed for them which the court is competent to impose, those punishments, when consisting of imprisonment, to commence the one after the expiration of the other, in such order as the court may direct, unless the court directs that the punishments shall run concurrently." The meaning of Section 3 (2) of the TIA was considered by this Court in the decision of Magala Ramathan vs. Uganda, Supreme Couft Criminal Appeal No. O1 of 2OL4 (unreported) in which this Court held that Section 3 (2) creates a general rule to the effect that the High Court should impose consecutive sentences in cases involving multiple convictions for various offences. The Court further held that, exceptionally, the High Court has discretion to impose concurrent sentences in cases involving multiple convictions for various offences, if it considers it appropriate to do so. Furthermore, in the Magala Ramathan case (supra), this Court also held that in ordering consecutive sentences, the total sentence must be proportionate to the offence and the circumstances surroundinq each case. Therefore, in exercising discretion under Section 3 (2) of the TIA, the sentencing Couft is obliged to ensure that any consecutive sentences it imposes are just, fair and proportionate and properly reflect the culpability of the offender. In his submissions in challenge to the consecutive sentences imposed on the appellant, counsel for the appellant's contention was only that because the appellant was convicted on two counts of the same offence of aggravated defilement, he ought to have been sentenced to concurrent sentences on the two counts. However, in light of the principles we have endeavored to explain above, this submission is incorrect. The High Court was, under Section 3 (2) of the TIA, entitled to impose consecutive sentences since the 8 appellant was convicted on multiple counts although of the same offence. In this case, we find that the consecutive sentences imposed on the appellant totaling 32 years imprisonment are appropriate in light of the appellant's high culpability for performing sexual acts on two very young girls. We note that the appellant told the High Court that he performed the sexual acts on the victims because a traditional medicine man he had visited over sexual impotence issues had imposed a condition for him to have sexual intercourse with virgin girls below 10 years of age when the impotence was cured. We take the view that the fact that the appellant defiled the two victims for ritual purposes also increases the appellant's culpability and justifies the sentences imposed by the trial Court. Accordingly, we do not find any reason for faulting the trial Court for arriving at the consecutive sentences it imposed on the appellant nor the Court of Appeal for upholding them. We therefore find that ground 2 of the appeal fails. For the above reasons, we find no merit in the appeal and dismiss lt. The appellant shall continue serving the consecutive sentences imposed by the trial Court. We so order. Signed at Kampala this . llth . day of . f\nrc-h .2026. F Mike J. Chibita Justice of the Supreme Court Elizabeth Musoke 9 Justice of the Supreme Court Christopher Madrama Izama lustice of the Supreme Court Catherine Bamugemereire lustice of the Supreme Court I Monica K. Mugenyi Justice of the Supreme Court Detivered by the Resistrar tnis.. . .. .llh. .....0* "l'...[10/n * 2026. Registrar, upreme Court 10