Walakira Lawrence v Uganda (Criminal Appeal No. 4 of 2022) [2025] UGSC 38 (18 September 2025)

5 THE REPUBLIC OF UGANDA IN THE SUPRTME COURT OF UGANDAAT I{AMPALA CRIMINAL APPEAL NO.O4 OF 2022 {Coram: Tibatemwa, Chibita, Madrama, Bamugemereire, Mugenyi JJSC} WALAKIRA LAWRENCE : : : : : : : : : : : : : : : : : : : : : : : : : : : : : : : : APPELLANT VERSUS UGANDA ::::::::::::::::::::::::::::::::::::::::::::::::::::: RTSPONDENT [An appeal aising from the decision of Kenneth Kakuru, Muzamint M. Kibeeedi, Irene Mulyagonja, JJA in Court of Appeal Ciminal Appeal No. 1 84 of 2O 18 dated 19th October 2O2 1 at Kampalal JUDGMENT OF THE COURT Introduction 11] This is a second appeal from the decision of the Court of Appeal, which upheld the appellant's conviction for manslaughter but set aside the sentence of life imprisonment imposed by the High Court and substituted it with a term of twelve (12) years' imprisonment. The appellant contends that the Court of Appeal erred in failing to take into account the period spent on remand. 10 15 20 1 5 Background 12) The appellant was indicted for the offence of murder contrary to sections 188 and 189 of the Penal Code Act CAP 120 which under the revised laws of Uganda Edition 2023, is now sections 170 and 172 of the Penal Code Act CAP 128. The facts were that on the 7u. day of September 2015, at Kiwafu Central Village B, Entebbe, Wakiso District the appellant unlawfully caused the death of Barbra Kobusingye. At the High Court, evidence to sustain a conviction for murder c/s '171, and 172 of the PCA was considered insufficient. As a result, the appellant was found guilty of the minor and cognate offence of manslaughter contrary to sections -l.,87 and 190 of the Penal Code Act, Cap. 120 (now section1.70 and1.73 of the Penal Code Act, Cap. 128). t3] His appeal to the Court of Appeal was against both conviction and sentence. The Court of Appeal upheld the conviction for manslaughter but set aside the sentence of life imprisonment imposed by the High Court and substituted it with twelve (72) years' imprisonment. Being dissatisfied with 10 15 20 2 5 the sentence of the court of appeal, the appellant now lodges this appeal against sentence only on the following ground: That the learned |ustices of Appeal erred in law when they sentenced the appellant to 12 years' imprisonment without due consideration to the remand period hence making the sentence illegal and thereby causing a miscarriage of justice. t4] The appellant prayed that the appeal be allowed, and that this court cures the apparent illegality by deducting the remand period arithmetically from the 12 years' final sentence that was given by the Court of Appeal. Representation t5] At the hearing of this appeal, Mr. Albert Mooli, holding the brief of Mr. Andrew Ssebugwawo, appeared for the appellant on state brief, while Mr. Simon Peter Semalemba Assistant Director of Public Prosecutions appeared for the respondent /State. t6] When the appellant appeared before us, he informed us of his decision to withdraw this matter based on the fear that this court would not be able to hear his appeal to its logical 10 15 20 3 5 conclusion. We as a court deeply regret the delay in handling of appeals such as the appellants. His case will serve as a test case to routinely bring up like cases to avoid a repeat of this scenario of delay which this court finds inacceptable and intolerable. Accordingly, we have considered the appellant's appeal. Submissions for the Appellant l7l Counsel for the appellant articulated the position that, in accordance with Article 23(8) of the Constitution and the precedent set by the Court in Rwabugande Moses v Uganda, SCCA No. 25 of 20-1,4, courts are mandated to deduct the period that an appellant has spent on remand. This deduction ought to be carried out with precise mathematical precision. Given that a determinate sentence is both distinct and ascertainable, it is imperative that the deducted period is readily identifiable. Furthermore, he emphasized that the court in Rwabugande specifically indicated that vague phrases, such as "the court has taken into account" the time an accused person has spent on remand, are insufficiently clear and should be voided for their ambiguity. 10 15 20 4 5 t8] It was contended for the appellant that the Justices of Appeal rendered an ambiguous sentence by observing, in passing, that the appellant had spent three (3) years in lawful custody. Counsel faulted the court of appeal for imposing a sentence of twelve (12) years' imprisonment without expressly deducting the said period from the final sentence. [10] Counsel invited this Court to consider the conduct of the appellant while in custody, noting that he had maintained exemplary behavior and has not incurred any record of misconduct during his imprisonment. He submitted that the time he had already served is sufficient to satisfy the ends of justice. 10 15 5 t9] He asserted that Article 23 (8) of the Constitution makes it mandatory and not discretional that a sentencing officer accounts for the remand period. 5 [11] Mr. Simon Peter Semalemba, the learned Assistant Director of Public Prosecutions, also counsel for the respondent, conceded to the appellant's arguments and acknowledged that the Court of Appeal did not deduct the three (3) years the appellant spent on remand from the sentence imposed. Determination of the Appeal 112] The entry point that grants this court authority to hear appeals of this nature is section 5 of the ]udicature Act which bestows upon this court authority to consider matters of law and mixed law and fact in criminal appeal bearing offences punishable by a sentence of death. However, in matters that do not include a death penalty, this court is enjoined to restrict itself only to appeals regarding questions of law. [13] The overriding factors and rationale behind the restrictive approach to appeals against sentence, in part, is the discretionary nature of sentencing. The court's position is well-articulated in Kiwalabye Bernard v Uganda SCCA N0.143 of 2001 that an appellate court will only interfere with a sentence imposed by the trial court if it is evident that such 10 15 6 20 5 a court acted on a wrong principle of law or overlooked a material fact or that the sentence is manifestly harsh and excessive given the circumstances of the given case. 15 20 7 10 [14] However, section 5(3) doubles down on the explanation when a sentence will be interfered with by the supreme court. The law under section 5(3) appears to imply that the supreme court will hear questions of law with the exception of severity of sentence. fi51 ln the case of an appeal against a sentence and an order other than one fixed by laut, the acarced persofl may appeal to the Supreme Court against the sentence or order, on a matter of lazo, not including the seaeity of the sentence. [16] The question of law for this court ought to ponder in the present appeal is whether the matter falls within the exceptions to the exception of section 5(3). [17) In the matter presently before us, the appellant was initially indicted for murder. The high court found him guilty of the minor and cognate offence of manslaughter. Leaning further, the court of appeal set aside the sentence of life imprisonment and instead passed a sentence him to T2years' 5 imprisonment against him. The appellant was under obligation to discover where the court of appeal might have erred to have standing in this court. The window open to this appellant was to find an exception to the rule "against sentence only" appeals that did not include severity of sentence. In his case, the fault lines lay in finding illegality in non-compliance with Article 23(8) of the Constitution which provides as follows: "8.Where a person is conaicted and sentenced to a tenn of imprisorunent for an offence, any period he or she spends in lawful astody in respect of the offence before the completion of his or her trial shall be taken into accortnt in imposing the term of imprisonment." [18] The above article 23(8) creates a constitutional dictate that the courts are obligated to follow whenever they hand out a determinate sentence. Illegality appears to be the legal basis upon which an appellate court will vacate or set aside a sentence passed by the lower court. 10 15 8 20 5 [19] In arriving at the what the court of appeal believed was an illegality they formed an opinion that sentences of life imprisonment are illegal for failing to deduct the time an accused has spent on remand. A thorough exploration of the court of appeal's judgment discloses some rather concerning observations that merit our thoughtful examination. The court observed that: "It therefore becornes clear to us that the trial judge in the instant case had a legal obligatiotr to consider the period that the appellant had spent in lazuful custody before conaictiott and sentence, He therefore erred when he sentenced the appellant to life imprisornnent without comply trg (8) utith the ,f section 23 of the Tlrc resultant sentence u)as therefore illegal." [20] The above reasoning of the court of appeal presumes that life imprisonment is a determinate sentence from which a precise period can be drawn to offset the time spent on remand. 10 15 20 proaisions Constitution. 9 5 121) Indeterminate sentences including the death penalty and life imprisonment do not fall within the purview of article 23(8). Indeed, the article succinctly confines itself to persons sentenced to'terms' of imprisonment. It impliedly alludes to determinate terms of imprisonment. In this respect, it was contended for the appellant that his term of imprisonment of 1,2 years was illegal for failure to consider the three years the appellant had spent on remand prior to conviction. 122] The sentencing remarks of the court of appeal included statements that have now form grounds of appeal. In sentencing the appellant, the learned Justices of Appeal remarked as follows: "We hazte taken into account that the appellant in this case had spent 3 years in lauful custody before lrc was conaicted. We therefore consider that a sentence of72 years' hnprisownent would meet the ends of justice. The appellant is therefore sentenced to 12 years in prisotr and the sentence shall 10 10 15 20 5 corn neflce on the 30th May 2018, the date on which he utas conaicted." 123) This Court has consistently underscored the position that the mandatory duty imposed upon sentencing courts is to consider and be seen to deduct the period an accused person has spent on remand prior to conviction. The proposition remains the in Rwabugande Moses v Uganda, (supra), position of this court. [24] [25] "It is our view that the taking into account of the period spent on remand by a court is necessarily arithmetical. This is because the period is known with certainty and precision; consideration of the remand period should therefore necessarily mean reducing or subtracting that period from the final sentence. That period spent in lawful custody prior to the trial must be specifically credited to an accused. L26) We must emphasize that a sentence couched in general terms that court has taken into account the time the accused has spent on remand is ambiguous. In such circumstances, it cannot be unequivocally ascertained that the court accounted 10 15 20 11 5 for the remand period in arriving at the final sentence. Article 23 (8) of the Constitution (supra) makes it mandatory and not discretional that a sentencing judicial officer accounts for the remand period." 127) This Court in Rwabugande (supra) elucidated the / obligation to deduct the period spent on remand*r+not merely a formality but a constitutional dictate as a measure to cause courts to account for periods accused persons remain on remand but also to protect the liberty of an accused person and ensure proportionality and fairness in sentencing. Failure to make such a deduction amounts to an illegality which renders the sentence unlawful. L28l Again, Nashimolo Nashimolo Paul Kibolo v Uganda [2020] UGSC 24 Rwabugande was highlighted which varied and deviated from the stance of this court's decisions in Kizito Senkula v Uganda SCCA No.24 of 2001,; Kabuye Senvawo v Uganda SCCA No.2 of 2002; Katende Ahamed v Uganda SCCA No.6 of 2004 and Bukenya Joseph v Uganda SCCA No.17 of 2070 which had postulated that "taking into consideration of the time spent on remand does not 12 10 15 20 5 necessitate a sentencing Court to apply a mathematical formula." l29l Basing on the above discourse, we can safely conclude that the Court of Appeal erred in law when it failed to take into account the period of three (3) years the appellant had spent on remand, as required under Article 23(8) of the Constitution. The omission rendered the sentence imposed illegal due to non-compliance with the law. [30] Presumably, this appeal succeeds. The sentence of twelve (12) years' imprisonment imposed by the Court of Appeal is illegal and is herewith set aside. [31] We now invoke our mandate under section 7 of the |udicature Act, Cap. L5, to re-sentence the appellant. Section 7 of the Judicature Act grants us jurisdiction in the same way it grants the court that decided the matter or passed the sentence. We now assume the mandate and the authority the lower court to impose and pass sentence. 10 15 13 20 5 l32l Having considered that the maximum sentence for manslaughter is life imprisonment it would have been harsh and excessive to sentence a first offender to the maximum sentence. We will go with the position arrived at by the court of appeal having considered the ranges of sentences for manslaughter. We agree with the position that sentences for manslaughter range fromT to 15 years. We have considered the considered the circumstances in which the offence was committed and find that a sentence of 15 years would be appropriate. [34] In the result, the appellant shall serve a sentence of twelve (12) years' imprisonment, to run from 30th May 20L8, the date of his conviction by the High Court. [33] Pursuant to Article 23(8) of the Constitution, and in o w A ( c, s;.r,rltwabugande, we now proceed to deduct the three (3) years 1s the appellant spent on remand. 10 20 14 [35] The appellant will serve a sentence of '1,2 years' imprisonment from the date of conviction, being 30ft May 2018. pala this..l #a^y ot 025. 5 Dated at Kam V, rA,o a,(-e-6^ _--------- 10 15 HON. LADY JUSTICE PROF LILLIAN TIBATEMWA-EKIRIKUBINZA JUSTICE OF THE SUPREME COURT 20 LI), €+^k e HON. JUSTICE MIKE CHIBITA JUSTICE OF THE SUPREME COURT 30 15 5 10 20 HON. JUSTICE CHRISTOPHER MADRAMA JUSTICE OF THE SUPREME COURT HON. LADY JUSTICE CATHERINE BAMUGEMEREIRE JUSTICE OF THE SUPREME COURT 25 30 ry', HON. IADY JUSTICE MONICA K. MUGENYI JUSTICE OF THE SUPREME COURT 16 15