Semulema Leonard and Alideki Patrick v Uganda (Criminal Appeal No. 70 of 2019) [2025] UGSC 42 (15 September 2025)

THE REPUBLIC OF UGANDA IN THE SUPREME COURT OF UGANDA AT KAMPALA (Coram: Tuhaise; Chibita; Musota; Madrama; Bamugemereire; IISC) CRIMINAL APPEAL NO. 70 OF 2019 1. SEMULEMA LEONARD 2. ALIDEKI PATRICK APPELLANTS VERSUS UGANDA RESPONDENT (Appenl from the decision of the Court of Appeal of Ugandn in Crinrinal Appeal No.47 of 2015 before Musoke, Mulnnguzi, llA and Knsule Ag. lA, delittered on 20tt, Nottember, 2019). ]udgment of the Court This is a second appeal filed by Semulema Leonard and Alideki Patrick, the Appellants in this appeal. The Appellants were convicted of murder and each was sentenced to imprisonment for life by the trial court. The Appellants appealed to the Court of Appeal against severity of the respective sentences passed against them. The Court reduced each of their sentences to 32 years' imprisonment. The Appellants filed this second appeal, on grounds that the Court of Appeal erred in law while resentencing them. Background The Appellants were part of a mob that attacked the late Alice Komujuni on the 5th day of November 2l-ll at Makoole village, 1 Makoole Town Council in Sembabule District. The Appellants suspected that the deceased had caused the death of Ganyana Matayo, their brother. The mob used hoes and pangas (machetes) to hit the deceased, and also threw bricks at her. The deceased succumbed to the injuries. The Appellants initially fled from the village in the wake of the said murder. They later returned to their respective homes on the assumption that the matters had been settled. The Appellants were arrested later, together with a one Ssensayi Vincent. They were indicted with the offence of murder contrary to sections 188 and 189 of the Penal Code Act, cap 120, now sections 1,71 and 172 respectively, in the 2023 revised edition, cap 728, Laws of Uganda. The matter went for trial before the High Court at Masaka. Ssensayi Vincent (A1) was sentenced to 7 years' imprisonment on his own plea of guilt. Semulema Leonard (A2) and Alideki Patrick (A3) went through a full trial. They were each convicted of the murder as charged, and were each sentenced to imprisonment for life, that is, for their "biological life". They appealed to the Court of Appeal against their sentences. The Court of Appeal allowed their appeal and accordingly reduced their respective sentences to 32 years' imprisonment to be served from the date of conviction, that is, 6th February 2015. The Appellants further being aggrieved, appealed to this Court on a sole ground of appeal, that is:- 1. That the learned |ustices of Appeal erred in law when they acted on a wrong principle whilst re-sentencing the Appellants. Representation 2 At the hearing of the appeal, Mr. Nsubuga Samuel, holding brief for Mr. Kunya Henry, represented the Appellants. Mr. Thomas Jatiko, Assistant DPP holding brief for Charles Kaamuli, represented the Respondent. The parties filed written submissions which they adopted before this Court at the hearing of the appeal. Appellants' Submissions Learned Counsel for the Appellants referred this Court to page 84 lines 27 -29 of the record of appeal and submitted that, it was a misdirection in law for the learned Justices of Appeal to take into account the second Appellant's lack of remorsefulness in determining the sentence to be imposed against the Appellants. He relied on the case decisions in Kizito Senkula Vs Uganda, Supreme Court Criminal Appeal No. 24 of 2001; and Busiku Thomas Vs Uganda, Supreme Court Criminal Appeal No. 33 of 2011 to support his submissions. Counsel also submitted that, in light of the fact that the death of Komujuni Joyce was caused by a mob action, the respective sentences of 32years' imprisonment imposed against the Appellants by the Court of Appeal were clearly out of the sentencing range for mob actions. Citing the case of Kamya Abdullah & 4 Others Vs Uganda, Supreme Court Criminal Appeal No. 24 of 2015, he contended that this Court as the final appellate court is under duty to maintain consistency in sentencing. Respondent's submissions 3 Learned Counsel for the Respondent submitted that the learned Justices of Appeal were justified to comment that the 2nd Appellant was adamant, even during the allocrrhts, that he was innocent and that he had been wrongly convicted. Counsel stated that, the sentence of 32 years' imprisonment was not imposed basing only on the said observation by the learned Justices of Appeal, but also on consideration of other reasons as highlighted on page 85, paragraph 4 of the record of appeal, which outlined the aggravating factors; that, indeed, the adamant character of the 2.a Appellant was not listed among the aggravating factors. Counsel also submitted that, if the learned Justices of Appeal had considered the 2na Appellant's lack of remorsefulness in determining the sentence, then only the second Appellant would have been the only one of the two to be sentenced to 32 years' imprisonment. He argued that the learned Justices of Appeal's sentencing both Appellants to 32 years' imprisonment meant that they did not base their sentence on the 2nd Appellant's being adamant. Counsel submitted, further, that it is reflected on page 84 of the record of appeal, that the learned Justices of Appeal toned down the purported harshness of their observation by stating that; " lrt ndditiotr, it lns heett estnblished tlnt the offenders uln pnrticipate (sic) in tlrc nnb justice tttill rtot be serttenced lmrshly as tlrcse wln did ttot." Counsel also submitted that the Court of Appeal referred to the case of Kamya Abdullah & 4 Others Vs Uganda (supra), where it stated that; "...sttch persons do trot nct zuitlr pre-nreditatiotr of tltose nrurderers wln ercatte their uictinrs it cold blood." In addition, Counsel argued that the learned Justices of Appeal 4 were looking for a soft-pillow landing for the Appellants who were charged with murder by mob justice, or, putting it another way, if indeed the learned Justices of Appeal were following or guided by what they are being faulted in this appeal as wrong direction, then they would have quoted authorities that call for harsher sentences for the Appellants. According to Counsel, though the comment was made by the learned Justices of Appeal, they did not follow the same in sentencing the Appellants. Counsel further submitted that the learned |ustices of Appeal relied on other authorities to ensure consistency in the sentencing of mob justice offenders. He submitted, for instance, that they made reference to the case decisions in Mutatina Godfrey & Another Vs Uganda, Supreme Court Criminal Appeal No. 61,/2015, where this Court declined to interfere with the sentence of 36 years' imprisonment; Aharikundira Yustina Vs Uganda, Supreme Court Criminal Appeal No.027 of 2015, where this Court substituted the death sentence with 30 years' imprisonment; and Turyahabwe Ezra & 12 Others Vs Uganda, Supreme Court Criminal Appeal No. 50 of 2015, where this Court maintained the sentence of life imprisonment. Counsel concluded that, the Appellants' counsel did not cite or refer this Court to any of its decisions where a sentence ol 32 years' imprisonment, regarding a case of murder committed under circumstances of mob justice, was noted to be out of the consistency range. Appellants' Submissions in Rejoinder 5 Learned Counsel for the Appellants reiterated his earlier submissions and added that, the fact that both Appellants were each sentenced to 32 years' imprisonment as submitted by the Respondent is immaterial in light of the glaring misdirection in law on the part of the learned Justices of Appeal. Counsel contended that the sentences of 32 years' imprisonment imposed against the Appellants for a murder caused by a mob is clearly out of the sentencing range for similar offences, and that, had it not been for the misdirection in law on the part of the learned Justices of Appeal, they would have imposed lower sentences in the range of 18 - 20 y ears' imprisonment. Counsel also submitted that the decision of this Court in Aharikundira Yustina Vs Uganda (supra) where the Appellant's death sentence was substituted with a custodial sentence of 30 years' imprisonment is distinguishable from the instant appeal since the said decision did not involve mob justice. Counsel submitted, further, that, the decision of this Court in Turyahabwe Ezra &12 Others Vs Uganda (supra) where the sentences of life imprisonment for Appellant Nos. 1, 2,3,4 and 6 were maintained is distinguishable from the instant appeal since the Appellants in the former never raised the issue of severity of sentence at the Court of Appeal, and the Court could not be faulted for not considering it. Consideration of the Appeal This Court's jurisdiction as a second appellate court is limited to considering questions of law or mixed law and fact that were before the 6 first appellate court. This Court is not required to re-evaluate the evidence like the first appellate court. This position is well stated under Rule 30 (1) of the Judicature (Supreme Court Rules) Directions SI 13 - 11; and in the case of Kifamunte Henry Vs Uganda, Supreme Court Criminal Appeal No. 10 of 1997. In light of the above principle, this Court will only interfere with the conclusion of the Court of Appeal if it appears that, as a first appellate court, it failed to re-evaluate the evidence as a whole. In this appeal the Appellants' grievance is that the learned Justices of Appeal erred in law when they acted on a wrong principle while re- sentencing them. The Appellants also contend that the sentence of 32 years' imprisonment passed against them by the first appellate court was out of range for cases involving mob justice. This appeal is against sentence. It is now a settled principle that an appellate court will only interfere with a sentence imposed by the trial court if it is evident that the trial court acted on a wrong principle, or overlooked some material fact, or if the sentence is manifestly harsh and excessive in view of the circumstances of the case. See Livingstone Kakooza Vs Uganda, Supreme Court Criminal Appeal No. 17 of 1993. Secondly, under section 5 (3) of the Judicature Act, cap 13 (now cap 16 of the 2023 revised edition), in the case of an appeal against a sentence and an order other than one fixed by law, the accused person may appeal to the Supreme Court against the sentence or order, on a matter of law, not including the severity of the sentence. 7 In the instant appeal, the record indicates that the Appellants were convicted of murder contrary to sections 188 and 189 of the Penal Code Act, cap 120, now sections'17"1 and"l7Zof the 2023 Revised edition, cap 128. The learned trial judge sentenced them to imprisonment for life. Their appeal to the Court of appeal was based on the ground that the learned trial Judge erred in law and fact when he sentenced the Appellants to imprisonment for life, that is, for their biological life, which the appellants challenged as being manifestly harsh and excesslve. The Appellants are therefore aggrieved that, in resentencing each of them to 32 years' imprisonment, the learned Justices of Appeal considered the lack of remorsefulness of the second Appellant as a factor in cletermining the sentence to be imposed against them. The Appellants argue that this was a misdirection in law on the part of the learned Justices of Appeal. In that respect, their counsel prayed this Court to allow the instant appeal, and to set aside their respective sentences of 32 years' imprisonment and substitute the said sentences with appropriate ones. 8 In the recent court decision of Ssenyonga Vs Uganda, Supreme Court Criminal Appeal No.82 of 2020 [20251 UGSC 1.8, even after concluding that the aggravating factors outweighed the mitigating factors, this Court nevertheless found no justification for interfering with the decision of the first appellate court. This Court made the final analysis that the appeal was against severity of sentence (penalty) forbidden by section 5 (3) of the Judicature Act cap 120 (now cap 218). On that basis, the appeal was dismissed. The Appellants' contentions were opposed by the Respondent whose counsel submitted that the 2',d Appellant's being adamant during nllocuttrs was not the basis of the learned Justices of Appeal's sentencing the Appellants to 32 years' imprisonment. The Respondent, through his counsel, prayed this Court to uphold the decision of the learned Justices of Appeal basing, especially on the aggravating factors listed by that court in their judgment on page 85 paragraph 4 of the record of appeal, rather than those highlighted by the Appellants. The Respondent's counsel also prayed this Court to uphold the Appellants' respective sentences of 32 y ears' imprisonment, as passed by the first appellate court, for being legal and appropriate in the circumstances. The record shows that both counsel, in their respective submissions, argued that the lack of remorsefulness was in respect of "the second" Appellant. To avoid inconsistency, it is important to determine who of the two Appellants was referred to in the submissions from both sides. The learned trial Judge, in his judgement at page 46 of the record of appeal, stated that:- " Tlre first accused Sensayi Vincent pleaded guilty nnd u,as conoicted nnd sentenced to inrprisotutent. Tlris judgetne is therefore in respect of A2 Sennilenm Leonnrd nnd A3 Alideki Patrick. I tuill for consistency refer to the nccused as nbooe." The record from the trial court, at page 42 of the record of appeal, indicates that ,,\2 Semulema Leonard is the one who, during nllocutus, stated that he did not commit the offence. The said Semulema Leonard was the 1't appellant at the Court of Appeal, and he is the first 9 Appellant in the appeal before this Court. In that respect, for clarification or proper reference, it is the 1't Appellant (Semulema Leonard), whose remorsefulness was the subject of counsels' submissions. In their re-evaluation of the adduced evidence, the learned Justices of Appeal found that the learned trial Judge had not taken into consideration the mitigating factors that the Appellants were first offenders, and that they were of youthful age. Consequently, the first appellate court set aside the sentence of imprisonment for life and proceeded to sentence the appellants under Section 11 of the Judicature Act. In sentencing the appellants, the learned Justices of Appeal considered both the mitigating and the aggravating factors. This is reflected at page 84 of the record of appeal, where, in their judgment, they stated:- "We shall ys71t proceed to deternine nn nppropriate sentence by oirtue of the pouers of tltis Court de ritted from section 'l'l of the ludicnhrc Act, Cnp.13. We note the follotuitrg ntiti ntirr ctors ruhich t ere rnisad fo, tlre appellnnts tlmt; thev ruere first offenders; tltey ruere of tlrc rlouthful nges of 33 years and 42 yenrs respectittely nt the tinrc of the conmrissiort of the offence; tlrcr1 ruere remorseful nnd they had fantily responsihilities. HorL,eter, tlrc 2,"1 appellnrrt runs ndamant etren durittg the nllocutus tlnt Ire utns irtrtocertt anLl tlnt lrc ltnd been ruronglv cotrtticted." (ur-rrlerlinecl for our emphasis.) 10 In addition, as reflected in their judgment at page 85 of the record of appeal, the learned Justices of Appeal considered the following as aggravating factors:- " The aggrattating circumstnttces Tttere that; tlrc itrjuries itflicted on tlu ttictim were fntal; tlrc t,ictirn suffered otter n lortg peiod of time; tlte uictim hnd n child tuho zoould miss her pnrental care; the ttictim was murdered in tlrc presence of her child; the nppellnnts, being brotlers-in lnw, brenclrcd her tnrst nnd the tnrst of their nephew (the ttictinr's chiltl) tuhonr they left orplnned. Further, in their conclusions reflected at pages 85 to 86 of the record of appeal, the learned Justices of Appeal stated:- " Afler due considerntiott of the mitignting and nggrattating fnctors, ue form the oiett, tlmt tlrc nnnner of the conrutission of tlrc ytresattt casc places it in a categonl tlmt wrtrtld nttrnct n lrcnt v sentertcc. Mutatina Goilftey €t another os. Uganda, Supreme Court Criminal Appeal No. 0061 of 2075, tlrc Suprenre Court declined to interfere uitlt n sentence of 36 yenrs' intprisonntent which hnd been substituted by the Court of Appeal for a sentence of 40 yenrs the trinl Court hnd inryosed on tlrc oppellant upon conttiction for tlw offence of Murder. Furtlrcr, in Aharikundira Yustina tts Uganda, Supreme Court Ciminal Appeal No. 0027 of 2015, the appellnnt hnd bnrtnlly rnurdered lrer lursbnnd nnd cut offhis hody parts itr cold blood, tlrc Suprenrc Court set nside tlrc denth sentence inryosed by the trinl Court nnd mnirrtained hy tlre Court of Appenl. lt strhstitutetl tlrcreof, n sentence of 30 yenrs' intprisottnrent. 11 Benring irr mind the fncts of this cnse nnd the precedents considereLl, rue lmte conte to tlrc conclusiotr that a serrtence of 35 rlears' irnprisonnrcti tpould be appropriate in tlrc ciratntstarrces. lt ruould gitre tlrc nppcllnnts a clmnce at rehabilitntion itt a hid to lmtre tlrcm reform. From tlnt sentence ue slnll deduct tlrc period of 3 rlears, whiclt each o,rc of the appellants hnd spent in Inrufiil custody tohile attending trinl. Each one tlrcrefore utill seroe n term of inryrisonmeri of 32 years front tlrc dnte of cottt ictiotr." (underlined for our emphasis). We have considered the record which shows that, at the point of sentencing the appellants, the first appellate court, when considering the mitigating factors, pointed out that the second appellant (Alideki Patrick) was remorseful. The same court then went on to state that the first appellant (Semulema Leonard) was adamant that he was innocent and that he had been wrongly convicted, and that he maintained this position even during the nllocrrtus. In as far as it can be deduced from the record, the learned Justices of Appeal, on that basis, concluded that remorsefulness as a mitigating factor, applied only to Alideki Patrick but not to Semulema Leonard. The first appellate court, as reflected at page 85 of the record of appeal, then went on to separately consider the aggravating factors in respect of the two appellants. The said court did not at any point, allude to the first appellant's (Semulema Leonard) lack of remorse as an aggravating factor. The record does not show that the first appellant's lack of remorse played a role in the first appellate court's sentencing of the appellants. The first appellate court, as is reflected on the record, 12 merely drew a distinction between the two appellants' mitigating factors. We also note that the first appellate court did not sentence the appellants to varying sentences, which further shows that the first appellant's lack of remorsefulness did not in any way contribute to the sentence that was imposed against the appellants. We have considered the authorities of Kizito Senkula Vs Uganda (supra) and Busiku Thomas Vs Uganda (supra) relied on by the Appellants' counsel to fault the learned Justices of Appeal for considering the 1.t Appellant's lack of remorsefulness when sentencing the appellants. In Kizito Senkula Vs Uganda (supra), this Court held, inter-nlin, thal absence of repentance by an accused person should never be an aggravating factor in considering what sentence the trial court should impose. The same principle was expounded by this Court, later, in Busiku Thomas Vs Uganda (supra), when, in agreement with the view of the law as stated in Mattaka's case (supra), ltheld, itfter aluz, that it was a misdirection in law for the learned Justices of Appea.l to have regarded the appellant's absence of repentance as an aggravating factor in sentencing him; and that absence of repentance by an accused person should never be an aggravating factor in considering what sentence the trial court should impose, particularly that a person's failure to repent should not be a factor for imposing a higher sentence. We agree that remorse is only a mitigating factor, and that therefore, it should not be used by court as an aggravating factor. In the instant 13 appeal however, it is our finding, as stated above, that the learned Justices of Appeal did not enhance the 1't Appellant's sentence based on his lack of remorse. On the contrary, the learned Justices of Appeal reduced the sentence imposed by the trial court against the 1't Appellant from life imprisonment to 32 years' imprisonment. This was after considering the case decisions in Mutatina Godfrey & Another Vs Uganda (supra) and Aharikundira Yustina Vs Uganda (supra), where the sentences of convicts were reduced. On that basis, we find that the learned Justices of Appeal did not misdirect themselves when sentencing the Appellants, and that the Appellants were properly sentenced by the first appellate court. We now proceed to consider the Appellan(s prayer that this Court maintains the sentencing range for mob actions as was held in the case of Kamya Abdullah & 4 Others Vs Uganda (supra). It is our finding above that the sentence against the Appellants was arrived at justly, and that the leamed Justices of Appeal did not misdirect themselves. Secondly, as per the principle laid outby this Court recently in Ssenyonga Vs Uganda (supra), the nature of the instant appeal that the sentence was based on lack of remorsefulness as an aggravathg factor is, in essence, an appeal against severity of sentence. This Court is precluded by section 5 (3) of the Judicature Act, cap 13, from entertaining criminal appeals on the severity of the sentence. We shall accordingly not interfere with the sentence. Thus, all in all, based on the findings of this Court and the applicable laws to the circumstances of this appeal, the appeal fails and is hereby dismissed. 1.4 Dated at Kampala this........1 day of J R Percy Night Tuhaise Justice of the Supreme Court Mike Chibita )ustice of the Supreme Court Stephen Musota fustice of the Supreme Court Christopher Madrama Justice of the Supreme Court M* 1.... . C4therine Bamugemereire Justice of the Supreme Court 15 ^; ^l