Vincent Ssenyonjo v Uganda (Criminal Appeal No. 58 of 2020) [2025] UGSC 39 (15 August 2025)

, TI{E REPUBLIC OF UGANDA THE SUPREME COURT OF UGANDA AT I(AMPALA (Coram: Tuhaise, Musota, Madrama, Bamugemereire & Mugenyi, JJSC) VINCENT SSENYONJO APPELLANT UGANDA RESPONDENT (Appeal from the decision of the Court of Appeal (Musoke, Muhanguzi & Kasule, JJA) in Criminal Appeal No. 3 of 2015) Criminal Appeal No. 58 of 2020 CRIMINAL APPEAL NO. 58 OF 2()2O VERSUS l JUDGMENT OF THE COURT This is a second appeal from a decision of the High Court in exercise of its original jurisdiction. Mr. Vincent Ssenyonjo ('the appellant') was indicted and convicted of two counts of aggravated robbery contrary to sections 285 and 286(2) of the Penal Code Act, Cap. 128 and one counl of rape contrary to sections 23 and 124 of the Penal Code Act. He was He was sentenced to term sentences of 30 and 40 years' imprisonment for aggravated robbery and rape respectively, which sentences were to run consecutively. 2. On appeal to the Court of Appeal against both his conviction and sentence, the conviction was upheld but the sentence was set aside. lt was substituted with term sentences of 13 years and 6 months' imprisonment on the flrst count of aggravated robbery and 11 years and 6 months on the second of the same offence, while the offence of rape attracted a senlence of 20 years and 6 months' imprisonment. All the sentences were to run concunently, The appellant now appeals to this Court on a singular ground that 'the learned Jusrices of Appeal ened in law when they upheld an illegal sentence rhrch is inconsistent with previous judicial precedence,' 4. ln a nutshell, the first appellate court is faulted for substituting the sentences imposed by the trial court with sentences that are allegedly inconsistent with judicial precedents. lt is thus proposed that the 20-year sentence imposed by the first appellate courl for the offence of rape be substituted with a 10-year sentence. 5. Learned counsel for the appellant cited numerous authorities in supportofthis proposition. Retracing the duty upon first appellate courts as laid down by thrs Court in Bernard Kiwalabye vs Uqanda, Criminal Appeal No. l tlil of 2001 (unreported); it is argued that an appellate court is not to interfere with the sentence imposed by the trial court in exercise of its discretion unless it results into a sentence that is so manifestly excessive or low as to amount to a miscarnage of justice, or where a trial court ignores an important consideration while passing the sentence, or where the sentence imposed is plainly wrong in principle. ln that case, it was further observed that where it is necessary 2 Criminal Appeal No. 58 of 2020 M,r;.4 A. lntroduction 3, At the hearing ofthe appeal, the appellant was represented by Mr. Henry Kunya holding brief for Ms, Sarah Awelo, while the respondent was represented by Ms. Fatuma Nakafeero, a Chief State Attorney. B. Determination to interfere with the sentence imposed by the trial court, the appellate court should follow the principle of consistency and uniformity in sentencing Hence in the latter case of Godfrev Mwanie vs Uoanda, Criminal Aooeal No 266 of 2015 (cited with app roval in Godfrey Mbunya vs Uqanda, SC Criminal Appeal No. 4 of 2011), this Court held that'though no two crimes are identical, courts of law must try as much as possible to ensure that cases of facts that bear some resemblance do attract similar sentences unless circumstances dictated otherwise.' 6. Mr Kunya cites the sentences imposed in Tomson Naturinda vs Uqanda 120171 UGSC 82 and David Tukamuhebwa Junior & Another vs Uoanda 120181 UGSC 7, to u rge this Court to entrench uniformity of sentence in cases of aggravated robbery coupled with sexual offences. ln Tomson Naturinda vs Uqanda (supra) an 18-year concurrent sentence for aggravated robbery, defilement and rape that had been reduced by the Court of Appeal to 16 years for aggravated robbery, 1 3 years for defilement and 10 years for rape, was subsequently conflrmed by this Court. On the other hand, in David Tukamuhebwa Junior & Another vs Uqanda (supra) the Court considered a Z)-year sentence to be appropriate for the offence of aggravated robbery while maintaining a 10-year sentence for the concurrent offence of rape. 7. Conversely, while acknowledging the circumstances highlighted in Edward Kvalimoa vs Uqanda. Criminal Appeal No. 10 of '1995 (unreported) under which an appellate court may interfere with a trial court's sentence; the respondent contends that there is nothing illegal about the '1O-year sentence for rape that had been imposed by the trial murt and was upheld by the first appellate court. It is argued that the leamed Justices of Appeal duly considered all the legal principles that pertain to sentencing, including the time spent on remand, the mitigating and aggravating factors, and consistency and uniformity in sentencing. B. Distinguishing David Tukamuhebwa Junior & Another vs Uqanda (supra) from the circumstances of the present case, it is argued that the issue in that case was the failure by both lower courts to deduct the period that the appellant therein had spent on remand. That matter is not in contention in the present Appeal. Meanwhile, this Court's observation in Tomson Naturinda vs Uqanda (supra) that the re-sentencing of an appellant by the Court of Appeal would not lpso faclo render the resultant sentence illegal, is opined to affirm Ms. Nakafeero's position on the legality of the impugned sentence in this Appeal. 9. lt is thus proposed that insofar as the appellant essentially challenges the severity of the sentence, he runs afoul of section 5(3) of the Judicature Act, by virtue of which an appeal only lies to the 3 Criminal Appeal No. 58 of 2020 M.u)4 Supreme Court on legality of sentence. State counsel asserts that appeals against harshness or severity of sentence have been severally adjudged by this Court to offend that statutory provision and are thus improperly before the Court. 10. Section 5(3) of the Judicature Act does indeed proscribe second appeals before this court against severity of sentence in the following terms: ln the case of an appeal against a sentence and an order other than one lixed 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. 11. We do agree with learned State Counsel that the foregoing statutory provision has been severally construed by this Court to preclude appeals to this Court in respect of severity or harshness of sentence. See James Kasercbanvi vs U qanda [20181 UGSC 29, Ahelle Asuman vs Uqanda 2018l UGSC 10, Jamada Nzabaikukize vs Uqanda [20171 UGSC 30, Ahdul Bonyo vs Uqanda, Criminal Aooeal No. 7 of 2011 (unreported) and Livinqstone Sewanva UGSC ,6. ln every one of the foregoing appeals, the Court restricted itself to the impropriety of appeals against sentence that were premised on harshness or severity of sentence. This position was reiterated in Geoffrey Okello vs Uqanda [20171 UGSC 37 , where the Court affirmed that section 5(3) of the Judicature Act only mandates it to entertain appeals against sentence on a matter of law We most respectfully abide those positions of the law. '12. ln its more recent decrsion in Peter Odeke & 2 Others vs Uqanda, [20251 UGSC 16 , however, the Court noted with concern the growing practice of appellants lodging disguised appeals against the severity of sentence that were couched as appeals against inconsistency of sentence, We consider it necessary to reproduce the Court's decision in the matter rn exlensio. lt was held: A granular look at counsel for the appellants'arguments exposes her arguments as undisguised submissions on excessiveness of the sentence. She laboured, unsuccessfully, to prove the existence of inconsistencv with previous iudicial Drecedents which loophole the court could use to look into the severity of sentence passed against the appellants. Counsel for the respondent was non-the wiser. She did attempt to delve into the jurisdiction of this court but rather altempted to distanguish the factual circumstances of the case law refened to, entirely missing the point. ln conclusion we find that this appeal is not brought to this court in conformity with the law. lnstead, we find that it to be a pretext. An appeal disguised as a question of law when indeed it is against severity of sentence. We have no cause to believe that these sentences raise a question of law so as to .+ Criminal Appeal No. 58 of 2020 wrl warrant our intervention. An appellant is precluded from appealing to this court on grounds of severity of sentence. (our emphasis) 13. lt seems quite clear that the appellants in that case sought to invoke the principle of consistency in sentencing to secure a reversal of their sentences but were unable to establish the fact of inconsistency. 14. Relatedly, in Ssenvonqa Kabbo vs Uqanda [20251 UGSC '18 the thrust of the appellant's case was that the trial court had not taken into accounl the available mitigating circumstances in arriving at the senlence, a position that was erroneously over-looked by the Court of Appeal, This Court dismissed the appeal on the premise that it was in essence a challenge to the severity of sentence, which is prohibited by section 5(3) of the Judicature Act. As shall be demonstrated shortly, a challenge to a sentence that is grounded in non-application of mitigating factors that could have yielded a more lenient sentence is indeed a challenge to the severity of a sentence that is not tenable under section 5(3) of the Judicature Act. 15. However, non-consideration of mitigating circumstances is not the bone of contention in the Appeal before us presently. Rather, the appellant explicitly contests the legality of a sentence that is inconsislent with established judicial precedent. He has demonstrated the extent of inconsistency by bringing to our attention the disparity between the 20-year sentence imposed by the Court of Appeal in the matter before us, as opposed to the 10-year sentences for rape that were confirmed by this Court in Tomson Naturinda vs Uqanda (supra) and David Tukamuhebwa Junior & Another vs Uoanda (supra). Furthermore, non-uniformity or inconsistency of sentence is argued by the appellant to be contrary to this court's observation in Bernard Kiwalabve vs Uqanda (supra) that an appellate court that considers it necessary to interfere with a trial court's sentence is bound by the principle of consistency and uniformity in sentencing, 16. This Appeal thus brings into focus the question as to what would amount lo a'matter of lavl tor an appeal against sentence to be properly before this Court under section 5(3) of the Judicature Act, lt is trite law that a sentence that does not take into account the period that a convict has spent on remand would be an illegal sentence and is thus undoubtedly a matter of law under section 5(3) of that Act. Equally well settled is an illegality that is grounded in a sentence that goes beyond the maximum penalty for any offence. An appeal against such a sentence would be properly before the Court. However, it goes without saying thal those scenarios are neither conclusive nor exhaustive of the full spectrum of matlers of law anticipated under that statutory provision. Hence, the ground of Criminal Appeal No. 58 of 2020 t6/\r4 appeal before us presently that essentially proposes that inconsistency in sentencing is a matter of law triable under section 5(3) of the Judicature Act. 17. First and foremost, in their literal sense severlty ofsentence and inconsistency in senfenclng cannot be considered to be tantamount to one and the same thing, One bespeaks the harshness of a sentence that might otherwise be legal; while the other alludes to non-adherence to existing judicial precedent as a guide to the appropriate sentences for designated offences. Undoubtedly, inconsistency in sentencing may lead to a harsher sentence but it could similarly yield a sentence that is so manifestly lenient as to occasion a miscaniage of j ustice. See Wamutabaniwe Jamiru vs Uqanda t20181 UGSC 8 and Bemard Kiwalabve vs Uoanda (supra). Hence, the mandate of appellate courts under section 34(2)(b) of the Criminal Procedure Code Act (CPC) to mcrease the sentence imposed by a lower court, as well as the recognition of a cross appeal against the leniency of a sentence by the Prosecution. See Joseph Musasa vs Uqanda f20131 UGSC 16 and Busiku vs Usanda t20151 UGSC 3 It would therefore be erroneous to so equate the concepts of inconsistency and severity of sentence as to render entirely redundant the renown principle of equality in sentencing. 18, The principle of equality in sentencing is synonymous with the concept of consistency or uniformity of sentence, and literally underscores the treatment of like cases in a similar manner albeit with due regard for circumslantial factors that could distinguish otherwise similar cases.l lndeed, it was concerns about equality at sentencing that birthed the sentencing guidelines phenomenon wodd- wide.2 Thus, in Odoki, B. J, A Guide to Criminal Procedu re. 2006, LDC, 3d Edition, p. 170 it is posited that'other things being equal, otfences of equal gravity deserve sentences of similar severity (and) if any differentiation is to be made between two offenders convicted of the same offences, it must be on the basis of other factors.' Stated differently, all things being equal, the same offence should attract the same sentence or a sentence of the same severity, differentiation in that respect only accruing on the basis of legally recognized mitigating factors. 19. Drawing a distinction between the standardization of sentences that flows from the principle of equality, as opposed to the severity of sentence that is influenced by mitigating and/or aggravating circumstances, it was observed: 6 Criminal Appeal No. 58 of2020 MrU-1 I See Bierschback, R. A & Bibqs, S. ll/hat's wrongwith Sentencing Equalil)?. 2016, lirginia Lu*- Review Association, pp. 1419, 1150. : Ibid at p. I449. The principle of Euality has the effect of standardizing sentences imposed on offenders convicted of simrlar crimes, The result of thls is to establish a measure o{ uniformity and consistence in the sentencing process. (On the other hand) mitigating laclors are circumstances of the ofience and offender which reduce the seriousness of lhe offence and consequently the seyerity of punishment. 20. This nuanced approach to sentencing is in tandem with the constitutional principle of equality of all persons before and under the law, and their right to equal protection of the law, which is expressed in article 21(1) of the Constitution as follows: All persons are equal betore and under the law in all spherB of political, economic, social and cultural life and in every other respect and shall enioy eoual protection of the law. (emphasls ours) 2'1. The constitutional commandinarticle2l(1)iswithoutadoubtamatterof law for purposes of section 5(3) of the Judicature Act. lnconsistency in sentencing would certainly defeat the notion of equal treatment of all persons under the law and thus constitute a clear constitutional violation. Article 21 (1) of the Constitution is indeed supplemented in that regard by the provisions of clause 6(c) of the Constitution (Sentencing Guidelines for Courls of Judicature) (Practice) Dtections. 2013 ('lhe Sentencrng Guidelines') that enjoin courts to 'take into account the need for consistencv with appropriate sentencing levels and other means of dealing with offenders in respect of similar offences committed in similar circumstances.' 22. As appositely observed in Odoki, B. J, A Guide to Crininal Procedure (supra), there is an exception to the equal treatment of like offenders at sentencing (or indeed abiding the direction ot the Supreme Court on appropriate sentence for a given offence, where available), where there are mitigating or aggravating factors that would differentiate one offender from anolher and thus affect the severity of the sentence imposed. lnsofar as they impact on the severity of a sentence, the consideration of aggravating or mitigating factors would be precluded from the jurisdiction of this Court under section 5(3) of the Judicature Act. That indeed is the import of this Court's decision in Ssenyonoa Kabbo vs Uoanda (supra) where an appellant had contested the omission by the lower courts to consider available mitigating circumstances so as to moderate the severity of the sentence. 23. We hasten to add, nonelheless, that this Court would be well within its remit to interrogate the Court of Appeal's handling of an appeal to ascertain whether it did abide the duty upon a first appellate court to provide fresh judicial scrutiny to the matters in contention before it, including the factors that influenced the sentence imposed where that too is in contention. Thatwasthe position of this Court 7 Criminal Appeal No. 58 of 2020 V/,<A in Henry Kifamunte vs Uoanda [19981 UGSC 20, where it was held that when sitting as a second appellate court, this Court would not be required to re-evaluate the evidence on record (including mitigating and aggravating factors) like a first appellate court should but may interfere with the conclusions of the first appellate court 'if it appears that in its consideration of the appeal as a first appellate court, it misapplied or failed to apply the principles as set out.' Similarly, Boqere Moses vs Uqanda (1998) UGSC 22 establishes the principle that a second appellate court may only undertake a re-evaluation of the evidence where it is not clear from the record that the first appellate court 'subjected the evidence as a whole to scrutiny that it ought to have done. And in particular it is not indicated anywhere in the judgment that the material issues raised in the appeal received the court's due consideration.' 24. Tuming to the Appeal before us, the appellant contests the 20-year sentence imposed by the Court of Appeal for the offence of rape, urging that it be substituted with a 10-year sentence in line with available judicial precedent. We must reiterate here that our findings earlier hereinabove on the principle of equality at sentencing should not be misconstrued to bind courts to the sentences that are confirmed by this Court. Rather, a sentencing court should take due cognisance of those sentences and maintain them where the circumstances of the case before it are materially similar to the case in respect of which the sentence accrues. However, where the circumstances of a case are materially different from those in respect of which a sentence arose, sentencing courts should lreat sentences that are confirmed by this Court as a base line guide, in respecl of which the applicable mitigating or aggravating circumstances of each case would be factored in order lo arrive at an appropriate sentence, 25. ln this case, it is apparent from the judgment on appeal that the Court of Appeal was alive to the principle of consistency in sentencing, duly taking into account the sentences imposed in Oditti Laqol Patrick vs Uqanda t19981 UGSC 2, Tomson Naturinda vs Uoanda (supra) and David Tukamuhebwa Junior & Another vs Uganda (supra), as well as the circumstances pertaining thereto. Whereas the lower court did acknowledge the 10-year sentence for rape coupled with aggravated robbery in the latter cases, as well as the mitigating circumstances in that case, it considered the aggravating circumstances to warrant a stiffer sentence. These include the fact that the appellant was a known violent offender in the area, and as a result of the ordeal she suffered at the appellant's hands in the course of the robbery, the rape victim (who was pregnant at the time) suffered internal injuries that led to a miscarriage and inability to conceive since the rape incident. lt Criminal Appeal No. 58 of2020 l'^il)-( 26. ln a country where criminal antecedents are hard lo come by, this uncontroverted evidence on the appellant's criminal record would justify the departure by the Court of Appeal from the 1o-year sentence for rape in the course of aggravated robbery that arises in available judicial precedent. We therefore do not consider it necessary to interfere with the 2O-year sentence for rape imposed by the Court of Appeal. C. Disposition 27. The stiffer 2O-year sentence notwithstanding, this decision does not reverse lhe now settled posrtion on the jurisdiction of the Court under section 5(3) of the Judicature Act. For the avoidance of doubt, the severity of sentence, which is the component of appeals that was ousted from the jurisdiction of this Court under section 5(3), was never a matter of contention in this Appeal - whether directly (in form) by way of a formulated ground of appeal or implicitly (or in substance) by way of the legal arguments that were advanced on behalf of the appellant, This Appeal was purely hinged on the question of inconsistency in sentencing. 28. ln the result, finding no merit in this Appeal, we do hereby dismiss it It is so ordered lur* Criminal Appeal No. 58 o12020 9 Dated and delivered at Kampala this yof. 2025. p\ Percy Night Tuhaise Justice of the Supreme Court Stephen Musota Justice of the Supreme Court I Criminal Appeal No. 58 o12020 l0 A,^E"*r W*',Ilu^"J) Christopher lzama Madrama Justice of the Supreme Court Catherine Bamugemereire Justice of the Supreme Court Monica K. Mugenyi Justice of the Supreme Court 5 THE REPUBLIC OF UGANDA, IN THE SUPREME COURT OF UGANDA AT KAMPALA (CORAM: TUHAISE, MUSOTA, MADRAMA, BAMUGEMEREIRE, MUGENYI, JJSC) CRIMINAL APPEAL NO 58 OF 2O2O 10 vrNcENT SSENYoNJ0) APPELLANT VERSUS UGANDA) ..._._...............RESP0N0ENT (Appeal from the decision of the Court of Appeal (Musoke, Muhanguzi & Kasule, JJA) in Criminal Appeal No. 3 ot 2015) JUDGMENT OF CHRISTOPHER MADRAMA IZAMA, JSC I have read in draft the judgment of Court and I concur with the order that the appeat be dismissed. The Judgment of Court has set out the facts and arguments of counseI as we[[ as the law and lneed not repeat them here save for the necessary facts to contextuatise my judgment. I very respectfully defer from the Judgment of Court on interpretation of section 5 (3) of the Judicature Act and my judgment is confined to this aspect of interpretation and ju risd iction only. 25 The appettant was convicted of two counts of aggravated robbery and one count of rape. This judgment relates to the count of rape. As far as ls material to my judgment, the appeltant was sentenced to 20 years and six months on the count of rape by the Court of Appeat. The appeltant atteges that this is inconsistent with previous judicial precedents where sentences of l0 years' imprisonment have been imposed for rape. The sole ground of appeat is that: 15 20 1 The [earned Justices of Appeal erred in law when they uphetd an itlegat sentence which is inconsistent with previous judiciat precedence. A party is bound by their grounds of appeal un]ess amended to make a case not disclosed in the previous ground of appeat. Rule 62 (2) of the Judicature (Supreme Court Rutes) Directions requires the memorandum of appeal to set forth concisety the grounds of objection to the decision appealed against. I note that no supplementary memorandum of appeat was filed and the appettant is thus confined to the sole ground of appeal set out above. The ground of appeat confines the appettant to argue two matters of law, namely, the ittegatity of the sentence which, apparently as an arm of the second ground and atteged inconsistency of the sentence with previous precedents. The undertying question is whether it is the alteged inconsistency which is ittegat. The appettant's counseI cited precedents where the Supreme Court uphetd a sentence of l0 years' imprisonment for the offence of rape in similar circumstances. The appettant contends that the sentence of 20 years is ittegal for going against the principle of uniformity in sentencing. The respondent on the other hand opposed the appeal on the ground that no appeal lies to the Supreme Court on the ground of severity of sentence. However, with regard to interpretation of section 5 (3) of the Judicature Act, the Court has approached the question as to what amounts to a point of law in terms of when an inconsistency or disparity in sentencing is distinguishable from severity of sentence and the same can be set aside. l, with due respect, do not entirety agree with this analysis because, inter alia, any appeaI under section 5 (3) of the Judicature Act has to be on a point of law against sentence save that the point of law shoutd not include severity of the sentence. This is based on the wording of the section. Further the issue of uniformity in sentencing is inherentty prob[ematic even if one argues about equatity before and under the law in terms of article 21 of the Constitution, as two judges may not reach the same sentence in the same case or circumstances of any offence may be different from any other 10 15 20 25 30 35 2 5 offence. Thirdty, the appea[ involves a capitaI offence with no Legistation on degrees of cutpabitity and the matter is at the discretion of the Judge. Moreover, as I shatt demonstrate, there is room for diversity in sentencing when article 126 of the Constitution, which at[ows for reconciliation between the parties and compensation to victims of wrong to be promoted, is factored in. This may tead to a lighter sentence where the parties have reconciled and compensation is preferred. For that reason, I have opted to write a separate judgment on the interpretation of section 5 (3) of the Judicature Act and the jurisdiction it confers on this court in second appeals against sentence. Section 5 (l) of the Judicature Act envisages an appeaI from a decision of the Court of Appeat against conviction and senlence. An appeal against sentence under section 5 (3) to the Supreme Court is a second appea[. Section 5 (3) of the Judicature Act states that: "ln the case of an appeat against a sentence and an order other than one fixed by [aw, the accused person may appeaI to the Supreme Court against the sentence or order, on a matter of [aw, not inctuding the severity of the sentence." The section unequivocalty provides that an accused may appeal to the Supreme Court on a matter of [aw, but the matter of law shoutd not include the severity of sentence. The question is whether any matter of law shou[d not have as its objective the reduction of the sentence because it is inconsistent with earlier sentences in that it is more severe. I witt start with the significance of the comma before the phrase " not inctuding the severity of the sentence " under section 5 (3) of the Judicature Act. The comma immediatety belore " not including the severity ol the sentence" is crucial. The signif icance of the phrase is that it is a restrictive ctause that directty modifies and limits the preceding phrase " on a matter of law." The comma ensures that the quatification " not including the severity of the sentence" applies specificatty to the "/raller of lavl' on which an appeaI can be based. Without the comma, there could be an argument that the entire appeat against sentence is generally atlowed, with a separate, less direct 10 15 20 ,q 30 35 exclusion of severity. 5 Further, the comma makes it unequivocatty ctear that when appeating on a "matter of [aw," the specific "matter of [aw" cannot relate to the severity of the penalty. lt emphasizes that even if a point about sentence is framed as a tegal question, it is still prohibited if its essence is a complaint about the harshness or severity of the punishment. Words in a statute shoutd be given their ptain and ordinary meaning, and punctuation, while not atways decisive, can be instrumental in discerning the tegistative intent. Some generat principtes on interpretation are stated by Lord Reid in Pinnerv Everett, fl969]3 Alt E.R.257 at 258 - 259 where he stated that: ln determining the meaning of any word or phrase in a statute the first question to ask always is what is the naturaI or ordinary meaning of that word or phrase in its context in the statute? lt is onty when that meaning leads to some result which cannot reasonably be supposed to have been the intention of the legistature, that it is proper to look for some olher possible meaning of the word or phrase. We have been warned again and again that it is wrong and dangerous to proceed by substituting some other words for the words of the statute. The context inctudes the punctuation. Further in Maunsell v Olins and another I975ll Att ER 16 at l8 Lord Reid stated that: "l futly accept that a word should be given its ordinary meaning unless there is sufficient reason to give it in the particutar case a secondary or [imited meaning. 10 15 20 4 The word severity has an ordinary as we[[ as a tegaI dictionary meaning. lt is a cardinaI rule that the first effort of the court seeking to interpret a section is to ascertain the natural or ordinary meaning of the word or 30 phrase or sentence in a statute. Where this is clear and unambiguous, there is no basis to go for aids to interpretation. There is nothing unctear or ambiguous about section 5 (3) of the Judicature Act and therefore the ptain and ordinary meaning approach should be adopted. 5 The comma in section 5 (3) of the Judicature Act in the phrase ,,mailer of law, not including severity of sentence", serves to delineate the scope of "matter of law," confining it to exclude the severity of the sentence. We can further examine appeals against inconsistency with precedents on severity of sentence. The core of this effort is to determine whether arguing that a sentence is inconsistent with previous precedents, with the ultimate aim of lowering the sentence, constitutes an appeal on a matter of law against the severity of the sentence, which is expticitty prohibited by Section 5(3) of the Judicature Act. It is clear that arguing that a sentence is inconsislent with previous precedents and seeking an order to lower the sentence is, in essence, an appeaI on a matter of law against the severity of the sentence, and therefore, it is generally barred by Section 5(3) of the Judicature Act. This is proved by demonstrating that aI appeals examined seek to achieve lhe [owering of the sentence on a point of [aw advancing inconsistency with previous sentences or the princip[e of uniformity in sentencing. The court should take a cautionary approach here and only consider the substance of the appeat and not the form. The court shoutd also consider the word "severity'. The Supreme Court has consistentty [ooked at the substance of the appeat rather than its form in determining whether the appeat is against severity and therefore barred. White the ground of appeal and arguments in support might be framed as a "matter of [aw" concerning consistency, uniformity or adherence to some judiciat principle on sentencing, the underlying goat is to reduce the "severity" of the penatty imposed. Where it can be discerned that the intention behind such an appeal is to demonstrate that the punishment is disproportionately harsh when compared to simitar cases, which directly relates to its "severity", the appeat is barred by section S (3) of the Judicature Act for want of jurisdiction. A sentence is the exercise of judiciat discretion which is wide in capitat offences and is guided by estabtished principles. This wide discretion is 10 15 20 25 30 5 35 5 augmented by ptea bargained sentences which may [ead to manifestly low sentences which the court cannot interfere with as they are not appeatable. Further a sentence or sentences imposed after an effort at reconciliation between the victim and the convict or community and compensation to the aggrieved party enabted by articte 126 (2) ot the Constitution where a lower discretionary sentences may be achieved may be inconsistent with other sentences for an offence with simitar circumstances. Further no circumstances of a capitaI offence are the same or similar for a variety of reasons. lwitt demonstrate that the range of possibte sentences is not statutory but has been attempted to be set by judiciaI precedence. The Court of Appeat as a first appettate court and the Supreme Court as a second appeltate court, are reluctant to interfere with a sentence unless it is ittegat, based on a wrong principte of [aw, or is so manifestly excessive or inadequate as to have occasioned a miscarriage of justice. This generaI reluctance is reinforced by Section 5(3) of the Judicature Act which specificatty excludes appeals against severity of sentence. This court has consistently uphetd the prohibition against appealing on the ground of severity of sentence and it is necessary to demonstrate this by reference to previous preced ents. ln Karisa v. Uganda (2019) UGSC 21, the Supreme Court reiterated that: "under section 5(3) of the Judicature Act, an appettant is prectuded from appeating against a sentence on ground of severity." The Court f urther cited Nzabaikukize Jamada v' Uganda (SC Criminal Appeat No. 0l of 2015), which simitarty hetd that a ground of appeaI on severity of sentence is barred by taw. while the court of Appeal in Uganda, as estabtished in Kiiza v. Uganda (2022) uGcA 13, can interfere with a sentence if it is "harsh and manifest[y excessive,,, this power is distinct from the supreme court's jurisdiction under section 5(3) of the Judicature Act. The court of Appeat's power to review harshness is part of its broad appetlate jurisdiction, while the supreme court's jurisdiction on appeals against sentence is expticitty 10 15 20 25 30 6 35 5 narrowed lo " matters of law, not including the severity of the sentence." ll is proposed that the Court of Appeat handtes severity or harshness or the manifestly [ow appeals against sentence but the Supreme Court handtes timited matters of law from an appeaI against determination of the Court of Appeat on sentence. ln Abette Asuman v Uganda (Civit Appeat 65 of 2016) 2018 UGSC l0 (19 Aprit 2018), the Supreme Court reiterated that Section 5(3) of the Judicature Act does not a[[ow an appettant to appeaI to the Supreme Court on the severity of a sentence; it onty permits appeats against a sentence on a matter of law. Therefore, arguments that a sentence is "harsh" or "excessive" wil[ not be considered by the Supreme Court. ln Okelto Geoffrey v Uganda 2017 UGSC 37 (20 September20lT) the Supreme Court affirmed that Section 5(3) of the Judicature Act restricts appea[s to the Supreme Court to matters of law, expticitty exctuding the severity of the sentence. The Court hetd that a sentence of 22years for aggravated def itement, while seemingty high, was not ittegaI given that the maximum sentence for the offense is death, and therefore, it woutd not interfere with the sentence. While the sentence seemed high the court was clear that it was lawful under the [aw which prescribes the penalty. The Court noted that counse['s failure to raise the issue of appropriateness of sentence in the Court of Appeat was a deretiction of professionaI duty, but ultimatety, the Supreme Court's jurisdiction on severity of sentence is statutorily limited. ln Odeke & 2 0thers v Uganda (Criminal Appeat 63 of 2019) 2025 UGSC 16 (ll Aprit 2025) the Supreme Court reiterated and reinforced the principte that appea[s to it concerning sentences are strictly timited to matters of [aw, and expticitty do notinclude the severity of the sentence, as prescribed by Section 5(3) of the Judicature Act. The Court found that attempts to frame arguments about "harshness" or "excessiveness" as "questions of [aw" are often pretexts to circumvent this statutory timitation. This decision was issued in Aprit 2025 and expticitty ctarified that some appeals on matters of [aw such as inconsistency of a sentence were reat[y disguised appeats on severity of 10 15 20 25 30 35 7 sentence. 5 ln yet another recent decision, in Sebunya & Another v Uganda 2024 UGSC 40 (21 March 2024l,the Supreme Court conf irmed that as a second appettate court, its jurisdiction regarding appeals against sentence is timited to issues of legatilyand which does not extend lolhe severityof the sentence, as stiputated by Section 5(3) of the Judicature Act. The Court emphasized that an appettate court can interfere with a sentence if it is itlegat (e.9., faiture to deduct remand period), but not mere[y because it is deemed harsh or excessive. The ground of appeaI on sentence was phrased as fotlows: The Court of AppeaI erred in law when they passed a sentence of 43 years and 5 months' imprisonment against the appellant after ignoring materiaI factors in lhe mitigation of the appettant's sentence. The Supreme Court held that: Section 5 (3) is ctear. lt gives the Supreme Court discretion to hear appeals from the Court of Appeat decision on sentence on points of taw only excepting the harshness or severity of pena[ty. An example of an appeaI against sentence on a point of law onty is the faiture to take into account the period the accused has spent on remand before his conviction contrary to articte 23 (8) of the Constitution. ln this appeaI we conc[ude that this appeaI is, in essence, a chattenge to the severity of sentence and is thus prohibited by section 5 (3) of the Judicalure Act. We do not have jurisdiction to hear it and we wit[ dismiss it. ln the above appeat, the Supreme Court considered the substance and not the form of the appeal before arriving at the conclusion that the appeat was against severity of sentence. Section 5 (3) of the Judicature Act has also been the subject of attack for inconsistency with the Constitution of the Repubtic of Uganda for timiting appeals to the Supreme Court against sentence. ln Chandi Jamwa v Attorney Genera[ (Constitutionat Petition 26 ot 2O21) 2023 UGCC l0l (27 June 2023), the Constitution Court in the tead judgment of Bamugemereire, JCC hetd section 5(3) of the Judicature Act does /,olviotate constitutionat rights by timiting appea[s to the supreme court on severity of sentence. The court clarified that appeats on matters of taw are still permissibte (e.9., if a remand period wasn't considered, or for any other ittegatity), but appeats 10 15 20 30 8 5 10 15 20 25 30 based purety on the "severity" or "excessiveness" of a sentence are discretionary matters of fact, not [aw, and therefore are not appeatabte to the Supreme Court under this section. The Supreme Court's historicat wiltingness to occasionally review severity, it was argued, does not negate the statutory timitation. Finally, it can be concluded that the argument that a sentence is inconsistent with previous precedents, when advanced before the Supreme Court, is inherentty an argument about the comparative severity of the sentence for the same defined crime. lf successful, it would lead to a reduction in the sentence, which directty addresses its "severity." The Supreme Court, in its interpretation of Section 5(3), has taken a strict view on this exclusion. This is not the only statutory provision that restricts appeats against sentences in second appeats. ln second appeats which go to the Court of Appeat where the originaI trial was before a magistrate's court, appeals are governed by section 45 (3) of the Criminat Procedure Code Act cap 122. This section 45 (3) onty atlows the Court of Appeat to increase, reduce or atter the nature of the sentence imposed in respect of a conviction of the High Court, it has affirmed, if it thinks that the sentence was an untawful sentence. Further under section 45 (4) the Court of Appeat may on a second appeat, substitute the conviction with a conviction for another disclosed offence and thereafter impose the appropriate penatty. The intention of the tegistature in enactment of section 5(3) of the Judicature Act is clearly to restrict the Supreme Court's involvement in matters of sentencing, leaving the primary consideration of sentencing discretion to the triat court and the first appellate court (in this case the Court of Appeal). This ensures that the Supreme Court focuses on fundamentaI errors of law that go beyond the quantum of the sentence itse[f provided it is a lawful sentence. ln conclusion on the question of inconsiste a sentence is inconsistent with previous sentence, they are effectivety asking the "severity" of the sentence in comparison t 9 ncy, when advocates argue that precedents and seek a lower Supreme Court to assess the o previous sentences in simi[ar 5 circumstances. This directty fatts within the ambit of what Section 5(3) of the Judicature Act prohibits. White the concept of "consistency in sentencing" is a legitimate consideration for triaI courts and the first appettate court (Court of Appeat) in exercising their sentencing discretion, it cannot be transformed into a ground of appeal to the Supreme Court where the undertying comptaint is the perceived harshness of the penatty. ln summary, the comma in section 5(3) of the Judicature Act reinforces the clear tegistative intent to exctude appeats to the Supreme Court on the severity of a sentence. Consequentty, any argument, however ingeniously framed, that seeks to reduce a sentence based on its perceived harshness or inconsistency with precedents, effectivety fatts within this prohibited category when brought before the Supreme Court of Uganda. Before taking [eave of this matter, I have deemed it necessary to explore the meaning of severity of sentence to demonstrate that it's a point of law and can be argued via different points of law. But where the result is to challenge a lawful sentence for being harsh, the appeat on that basis is ba rred. The term "Severity," is defined by Btack's Law Dictionary llth Edition as "the degree of sternness, harshness, or austerity." This concept extends to the inherent gravity of an offense (e.9., its ctassification as a felony or misdemeanour and the presence of aggravating factors) and the strictness of the ensuing legat consequences. Severity may therefore refer to the ctassification of different crimes and the proportionality of punishment and its deterrent effect. lt inctudes proportionatity of sentence within the same offe n ce. The sentence must be proportionate to the offending behaviour. lt shoutd reftect the seriousness of the offence and the offenders level of cutpabitity. What was the harm caused, how was it executed and the offender's role in it? Further the sentence should not be more than is necessary to serve the purpose of sentencing such as punishment, deterrence, rehabititation and pubtic protection. The courts consider aggravating circumstances to 10 15 20 25 30 35 10 5 increase the severity of the sentence or consider mitigating circumstances to reduce the severity of the sentence. Sentencing in Uganda is primarity guided by the Constitution (Sentencing Guidelines for Courts of Judicature) (Practice) Directions. These guidetines were developed after the doing away with mandatory death penatty for certain offence. The sentencing guidetines aim to foster consistency, uniformity, and fairness, white uphotding judiciat discretion. Courts are required to take into account proportionality, parity, totatity, ind ividua [ization of the offender (considering factors like age, remorse, prior record), impact of the offense on the victim and community, deterrence, rehabititation, and denunciation of unlawful conduct. The Sentencing Guidelines sets a common starting point of 35 years' imprisonment (with a maximum of death) for att Third Schedule Capitat Offences, which inctude Murder, Rape, and Aggravated Robbery. This gives a broad range but judiciat practice has introduced de facto categorization for certain offenses. ln Bashasha Sharif v. Uganda, [20191 UGSC 65 (5 December 2019), the Court upheld a death sentence for the murder of a 9- year-old boy, emphasizing extreme brutatity and victim vulnerability as severe aggravating factors. This iltustrates that heinous murders are treated with the highest severity, akin to "first-degree" offenses, despite the absence of formaI statutory categorization. ln Kabaza vs. Uganda, Court of Appeat Criminat Appeat No. 0009 of 2013 [2019] UGCA 2082 (25th June, 2019), the Court of Appeat re-sentenced the appetlant to 30 years' imprisonment for aggravated robbery. The court impticitly weighed the presence of deadty weapons and premeditation against the absence of loss of ]ife or severe physicat inju ries. For cases of rape, there is a lack of expticit statutory classification of levels of cutpabitity and harm despite the potentiat to note aggravating factors like the use of violence, injury etc. The offense of "rape" under Section 110 of the Penat Code Act lacks a tegislative distinction between basic and aggravated forms untike "aggravated defilement". This can tead to a less structured 10 15 20 25 30 35 sentencing regime. 11 5 ln Ssati Alex v. Uganda, Court of Appeat Criminal Appeat No. 20 of 2020, the High Court's 40-year sentence for rape was reduced to 20 years by the Court of Appeat, stating it was "too harsh and excessive in the circumstances." This case itlustrates that sentences, while substantia[, are determined using generaI principtes rather than distinct statutory categories for rape itself, untike how the courts impticitty tier murder. The common ground of appeal against sentence is that it is manifestly excessive. ln addressing this ground the fottowing are possibte arguments against the harshness of the sentence. (a) The Judge adopted too high a starting point. (b) The Judge gave too much weight to aggravating factors. (c) The judge gave too tittte weight to mitigating factors. (d) The judge made an error in principte and (e) the Judge failed to consider a relevant factor. ln Ogalo s/o Owoura v R 0954) 21 EACA 270, citing James v. R, 0950) l8 EACA 147), the East African Court of Appeat set out the following principles for rarety interfering with sentencing discretion of the triat judge namety: (a) the court will not alter a sentence because members of the appettate court woutd have reached a different sentence untess; (b) the judge acted on a wrong principte or overtooked some materiat factor. (c) the sentence is manifestty excessive in view of the circumstances. This was echoed in Wamutabenewe Jamiru vs Uganda SCCA No. 74 ot 2007 2018 UGSC I 02 Aprit 2018) and the Supreme Court of Uganda inctuded the principte that the trial judge ignored a materia[ factor or circumstance which ought to be considered while passing sentence. Further in Kajubi vs Uganda; (Supreme Court Criminal Appeat No. 20 of 2014) 2021UGSC 45 (l2th November 2021) the Supreme Court included the lowness of the sentence as would reduce confidence in the system of administration of justice. Where any of the matters of taw stated above are a ground of appeal with a view to shooting down the sentence on the ground of being too severe, the appeat is barred because the "matter of taw" inctudes severity of sentence. The principte of proportionality has two loaded portends. lt deats with the concept, inter atia, of its retationship to the gravity of the crime or the harm provides for the appropriate sentence where 10 15 20 25 30 caused by the viotation. lt t2 5 capitat offences attract more severe sentences than non-capitat offences. This principte, dictates that the punishment shoutd fit the crime. But within the same offence there are degrees of cutpabitity. For instance, in Betize, section 106 of the Criminal Code states: 106 (1) Every person who commits murder sha[[ suffer death: Provided that in the case of Class B murder (but not in the case of Ctass A murder), the court may, where there are special extenuating circumstances which shatt be recorded in writing, and after taking into consideration any recommendation or ptea for mercy which the jury hearing the case may wish to make in that behatf, refrain from imposing a death sentence and in Iieu thereof shatt sentence the convicted person to imprisonment for [ife' There are different classifications of murder under the [aw. The Supreme Court of Betize per ruling of Abdutai Conteh in Oueen v. Reyes reported in Edward Fitzgerald and Keir Starmer OC; A Guide to Sentencing in Capital Cases, stated that: The need to have regard in the exercise of the discretion whether to sentence an offender to death or life imprisonment would therefore, prectude a [ist of a predetermined speciaI extenuating circumstances. And the proviso has, rightty in my view, stopped short of spetting out such a [ist. Each case shoutd be considered and determined within the overarching conslitutionaI requirement of humanity stiputated in section 7 of the constitution of Belize, which woutd inctude the consideration of the culpability of the oftender and of any potentiatty mitigating circumstances of the offence and the individual offender. For the severity of the sentence to fit the seriousness of the crime, there is a specific section in an Act of parliament giving the class of seriousness of the offence. For one to argue that the sentence is severe one would state that the sentence fel[ in class B in terms of cutpabitity. ln Uganda there is no ctassification for the capitat offences under consideration as we shal[ note betow. The general doctrine is that the "the severity of the punishment is proportionate to the seriousness of the crime". However, to argue that a sentence is more severe gives a second meaning that the punishment is harsh and excessive and does not fit the crime 15 20 25 30 35 13 10 5 though it is within the range of possible sentences depending on the degree of cutpabitity. That it is disproportionate. lt asserts that the convict deserves a tighter sentence or penatty for the crime though one can argue it as a matter of the sentence not fitting the crime and give a range of proportionate sentences for the same definition of crime. For instance, the punishment for a person convicted of rape is prescribed by section lll of the Penal Code Act Cap 128 Laws of Uganda 2023 (revised taws) (the PCA) which prescribes that "A person convicted of rape is liable to suffer deatll'. For the crime of murder under section 172 of the PCA the prescription is thal: "Any person convicted of murder is liable to suffer deatll'. For treason under section 23 (l) (d) and (2) (b) of the PCA"any person who commits lreason is liabte on conviction to suffer deatlf . For aggravated robbery under section 267 (2) of the PCA it is written that the person on "conviction is", liable to suffer death".lhe same discretionary range of punishments is possibte for rape, murder, treason and aggravated robbery. Proportionality and severity of sentences in terms of serious crimes and befitting penalties is primarity determined by the legistature which defines in a statute, the offence and prescribes the range of associated penatties according to articte 28 (12) ol the Constitution. Courts are generalty bound by these statutory timits when imposing sentences. Sentencing guidetines do not amend the statute defining the offence and prescribing the range of possibte sentences but guide the exercise of judiciat discretion in se nte n cin g. while statutes set the range of sentences, judges often have discretion within these parameters to determine the exact proportionate sentence in a given case. This involves considering aggravating circumstances which are factors that increase the culpabitity of the offender or the harm caused, teading to a more severe penalty (e.g., use of a weapon, prior convictions, particular vulnerabitity of the victim) and mitigating circumstances which are factors which reduce the cutpabitity or harm, potentialty [eading to a [ess severe penatty (e.g., first-time offender, remorse, mental heatth issues, youth or age of the offender). The court in the exercise of 10 20 30 35 14 discretionary sentencing powers considers the purpose of the sentence which inctude retribution, individuat deterrence, generaI deterrence, rehabititation, and incapacitation. I wilt make reference to onty capitaI offences. These are offences where the convict is tiabte to suffer the death penatty. Because judges have sentencing discretion as to whether to impose the death sentence, they may sentence the convict to suffer a term or terms of imprisonment, ranging from short terms for less grave circumstances, to tife imprisonment or even to death, for serious degrees of a capitat offence. The biggest challenge to this has been that Partiament has not tegistated a range of sentences for offences that formerty carried a mandatory death penatty. Generalty, and according to case taw, the death penatty is reserved for the most heinous of capital offenses namely murder, aggravated robbery, rape, and treason. Under what circumstances courts would sentence a convict to death for rape has not yet been pronounced by any court or determined through tegislation. lt has, thus far, been teft to the sentencing discretion of judges. Judiciat precedents in Uganda developed after Susan Kiguta & 416 Ors v Attorney Genera[ (Constitutionat Petition No. 6 of 2003) [2005] UGCC 8 (10 June 2005) where the constitutionaI court nuttified a[[ mandatory death sentences previously prescribed for murder, aggravated robbery and treason. This was affirmed by the Supreme Court in Atlorney General v Susan Kiguta & 417 Ors [2009] UGSC 6 (21 January 2009). After the mandatory death sentence was dectared unco nstitutio na I for infringing on the sentencing discretion of judges, the interpretation of sections defining offences which formerty carried a mandatory death sentence was that persons found guitty of such capitat offences were'only Iiab[e on conviction to be sentenced to suffer death,,. The judiciat precedents since then establish the outer limits of acceptabte severity, hotding that a penatty must not be "grossly d isproportionate" to the crime. These developments atso meant that offences tike rape and where the convict is tiabte to suffer death fett in the same bracket, as far as sentencing range is concerned, with the offences of murder, aggravated robbery and treason which hitherto carried the mandatory death penatty. lt woutd be injudicious not to consider the same 10 15 20 25 30 35 15 range of possibte punishments for rape, murder, treason and aggravated robbery as they carry the same legistative penalty. Judicial precedents that came after Attorney General v Susan Kiguta & 417 Ors [20091 UGSC 6 ended setting out what is excessive or severe or even manifestly low sentences. These precedents disclose absurdities because a person convicted of manstaughter which is triabte by a Magistrates Court is tiabte to suffer up to life imprisonment. Yet manstaughter is not a capital offence and the PCA section 173 provides that such a convict is tiabte to life imprisonment. Yet where a person triabte by the High Court is found guitty of rape, aggravated robbery, murder or treason, he or she may be spared the death penalty and the highest or most severe imprisonment they would face is tife imprisonment just tike the maximum penalty for manslaughter. lf serious offences are classified, manstaughter should carry a less severe punishment than the least cutpable murder. This absurdity was noted by the Supreme Court in Ssekawoya Blasio Vs Uganda Supreme Court Criminal Appeal No 24 of 2013 [2018] UGSC 6 (9th Aprit 2018) which judgment dealt with the deeming of tife imprisonment sentence to be twenty years for purposes of remission. The Supreme Court curiously hetd that tife imprisonment means imprisonment for the remainder of the convict's tife, in the post Kigula sentencing regime. This recognised a turning point in the sentencing regime in terms of proportionatity for serious offences to attract more severe forms of life imprisonment. They hetd that for persons convicted of murder but were spared the maximum sentence of death provided for under the Penat Code Act, their tife imprisonment would be without remission: Persons convicted of murder and sentenced to imprisonment for life (meaning for the remainder of their [ives) as a resutt of this court's decision in Kiguta shoutd be distinguished from persons convicted of manstaughter and sentenced to imprisonment for tife, who coutd benefit from remission provisions under our section 86 (3) of the Prisons Act, which provides that 'for the purposes of catcutating remission of sentence, imprisonment for life sha[[ be deemed to be twenty years.'Partiament never intended these provisions to be applicable to persons convicted of murder for there was onty one mandatory sentence after conviction: death. lt is also important to note that the remission provisions under 10 15 20 25 30 16 5 15 20 25 30 our Prisons Act concurrentty existed with the mandatory death sentence provisions in the Penal Code Act in the pre-KiguLa era. Before we take [eave of this matter, we wish to note that it woutd be an absurdity if a person convicted of murder was attowed to benefit under the provisions of remission in respect of the Life sentence and another person convicted of murder and sentenced to death woutd not. Ctearty, this was never the intention the [egistature had in mind when it passed the provision under the Prisons Act, which the appetlant woutd benefit from by equating his sentence of life imprisonment to twenty years. The matter has not been aided by the passing of the Law Revision (Penalties in Criminal Matters) Miscettaneous (Amendments Act) 2021 which came into force in 2021 and defines imprisonment for Life or life imprisonment to mean imprisonment without the possibitity of being reteased. The maximum penatty for manstaughter remains life imprisonment. Section 4 provides that: 4. Treatment of life imprisonment or imprisonment for [ife rn any enactment. (1) For purposes of any enactment prescribing [ife imprisonment or imprisonment for [ife, life imprisonment or imprisonment for Life means imprisonment for the natural [ife of a person without the possibility of being released. At the same time, the law at[ows a maximum Length of imprisonment to be 50 years' imprisonment. This does not differentiate between manstaughter and murder overtaking the judiciat distinctron. Simitarty, a person found guitty of rape can suffer [ife imprisonment as defined in the same range as for murder, aggravated robbery and treason. The judiciat definition ptaced imprisonment for murder, aggravated robbery and treason which used to l7 10 We have already noted that foltowing the Kiguta decision, imprisonment for [ife became and remains the second most severe sentence a person convicted of murder can be sentenced to, if he or she is not sentenced to death. We are therefore not convinced with the appellant's argument that convicts of murder shoutd be treated in a simitar manner as those convicted of manstaughter by getting the same sentence when they are sentenced to Life imprisonment, which, according to the appettant is twenty years. carry a mandatory death penatty to have more severe penatties than other offences. Other ranges of penalties were stit[ determined by court. With probtems of determining through judiciaL precedence what the possibte ranges of sentences for the offence of rape shoutd be, what is material here is that, uttimateLy, the Supreme Court is prectuded from determining an appea[ on the ground of severity. The ground in this appeaL presents inconsistency of 20 years' imprisonment with other eartier precedents where a sentence of '10 years' imprisonment was imposed for the offence of rape. Att rape offences have the same definition and it may be hard to grade the aggravation vis a' vis the sentence ranges without statutory ctassif ication. lt woutd be sufficient for me to state that the ground of appeal. in the matter before court ctearty avers that the learned Justices of Appeat erred in law when they uphetd an ittegat sentence which is inconsistent with previous judiciaL precedence. For that reason, the appeal is on a point of law advancing inconsistency with precedents and aiming to reduce the sentence to about 10 years. lt is a ground of law which inctudes severity of sentence barred by section 5 (3) of the Judicature Act. ln the circumstances I concur with the order dismissing the appeal. but would order that it shoutd be dismissed on the ground of want of jurisdiction. Dated at Kampal.a te -May ot 2025 Ch n5 o pher Madrama lzama Justice of the Supreme Court 10 15 20 ,q. ) 18 5 THE REPUBLIC OF UGANDA IN THE SUPRIME COURT OF UGANDA AT KAMPALA CORAM: {Ttrhaise; Musota; Madramal Bamugemereirel Mugenyi; JJSC} CRIMINAL APPEAL NO. 58 OF 2O2O SSENYONJO VINCENT : : : : : : : : : : : : : : : : : : : : : : APPELLANT VESUS UGANDA : : : : : : : : : : : : : : : : : : : : : : : : : : : : : : : : : : : : : : : : : : : RESPONDENT lAn appeal from the decision Musoke, Muhanguz| Kasule, JJA, in the Court of Appeal Criminal Appeal No. 3 of 2O 15 at Kampalal IUDGMENT OF CATHERINE BAMUGEMEREIRE, ISC I have had the opportunity to review, in draft, the Judgment of Court, and I agree with the conclusion and order that the appeal should be dismissed. The facts and law underlying this appeal have been propounded in the above Judgment of Court and I would join issue with them. While I agree with the final order, I respectfully present a discrete reason for dismissing the appeal. This is rooted in the interpretation and application of section 5(3) of the Judicature Act, Cap 16, which I believe underpins this appeal. It is trite that this Court's jurisdiction in criminal appeals against sentence is confined to matters of law. The Constitution defines the scope of appellate jurisdiction under Article 1.32 (2), restricting it exclusively to appeals specified by legislation. 10 15 20 25 1 5 " An appeal shall lie to the Supreme Court from xtclr decisions of the Court of Appeal as may be prescribed by lallt." With specificity, section 5(3) of the Judicature Act permits an appeal to this Court only on the legality of a sentence. It explicitly prohibits appeals predicated on matters of law that encompass severity or harshness of a sentence, including questions related to the consistency or equivalence of sentences. Section 5 (3) states that: - "5. Appeals to the Supreme Court in Criminal Matters (3) ln the case of an appeal against a sentence and an order other than one fixed by lazu, the accused person finy appeal to the Supreme Court against the sentence or order, on a matter of law, not including the seaeity of the senterrce." In the present appeal, the appellant's counsel has sought to invoke the principle of consistency in sentencing as a legal question deserving our scrutiny. Specifically, the ground of appeal is: - "The learned justices of the court of appeal erred in law when they upheld an illegal sentence which is inconsistent with previous judicial precedence." 10 15 20 2 5 In substantiating the aforementioned ground of appeal, the appellant's Counsel relied on precedents to demonstrate that the Supreme Court upheld sentences of ten years' imprisonment for the offence of rape under similar circumstances. She contended that a sentence of twenty years' imprisonment violated the principle of uniformity in sentencing and was therefore illegal. I did not find benefit in Counsel's discussion on whether the facts warranted stiffer or lesser sentences. This is particularly so because in appeals before this Court, the law expressly precludes appeals on the severity of sentence, and therefore, Counsel's submissions ought to aid the court in finding an exception or adhering to the law. In Odeke & 2 Others v Uganda ISCCA 63 of 20191 2025 UGSC 16 the ground of appeal was framed such as the one currently before us. "That the learned fustices of Appeal erred in law when they upheld an illegal sentence which is inconsistent with previous judicial precedents." In Odeke: 10 15 3 20 5 "We note utitlt concern thnt settersl nppellants lodge tlrcir appenls ngainst the setteriU of sentence under pretext that it can pass scrutiny under section 5(3) of tlrc ludicature Act. To this end the nppenls appear ns undisclosed or disguised questions of lmu for interrogation before this court. A grnnulnr look nt counsel for tlrc appellants' nrguntents exposes lrcr nrguments ns undisguised submissions on excessitteness of the sentence. Slrc laboured, uttsuccessfitlly, to protte tlrc existence of inconsistency ruitlt prertious judicinl precedents uthiclt loopltole tlrc court could use to look into tlrc setterity of sentence passed against the appellants. Counsel for the respondent utns non-the ruiser. . .but ratlrcr ntterupted to distinguish tlrc factual circumstnnces of tlrc case lau re.ferred to, entirely ntissing tlrc poitrt. In conclusion, ute f.nd that this nppenl is not brought to tltis court in confornrity ttrith tlrc lau. Instend, rue f nd tlut it to be n pretext." I would go a little further to expound that although inconsistency is a question of law, it is not heard by this court. Upon a cautious analysis of counsel's submissions, it is apparent that the complaint raised is one of comparative dissatisfaction, that the sentence in the present case is more severe than in similar appeals; without establishing any legal error, arbitrariness, or misapplication of established legally justifiable principles. While the principle of consistency is crucial in fostering fairness and maintaining public confidence in the justice system, it is limited to serving as a mechanism for appealing 10 15 20 25 4 5 the severity of a sentence up to the Court of Appeal. The jurisdiction of the Supreme Court in criminal matters is restricted to questions of law and does not extend to the review of sentencing discretion by lower courts unless a clear error of law is demonstrated. Conversely, both the trial court and the Court of Appeal possess broader jurisdictional authority. Notably, the Court of Appeal is authorized to consider both legal and factual issues, including the authority to vary a sentence on grounds such as harshness, excessiveness, or inconsistency. This mandate does not apply to this Court. The Supreme Court has in several cases, held that an appeal against severity of sentence is barred under section 5 (3) of the judicature Act. See: Abelle Asuman v Uganda Civil Appeal 66 of 2016 2018 UGSC 10, Okello Geoffrey v Ugand,a 2017 UGSC 32 Odeke & 2 Others v Uganda (supra) and Sebunya & Another v Uganda 2024 UGSC 40 2L March2024; See also Mudhasi lvan v Uganda Criminal Appeal No. 23 of 2022. While I affirm that Article 27(7) and clause 6(c) of the Sentencing Guidelines are essential tools for achieving comparability in sentencing, they cannot serve as a means to 10 15 20 5 articulate the nuances concerning the severity of sentences within the courts, whose jurisdiction is clearly delineated. This appeal is, in substance, an impermissible challenge to the severity of sentence, disguised as a novel question of law along the lines of incongruence of sentence. It contravenes the express provisions of Section 5(3) of the Judicature Act and, consequently, is improperly before us. No question of law has been framed that would justify the intervention of this Court. I concur with the order that this appeal be dismissed. 10 # day of ..ffi ,aa),- Signed at Kampala this 2025 15 20 CATHERINE BAMUGEMEREIRE JUSTICE OF THE SUPREME COURT 25 Delivered at Kampala on the ^NEuy ot \,tlA 2025 6 w,, ,rrr 3c-,