No. 19515 Sgt. Solomon Nkojo v Uganda (Criminal Appeal No. 2 of 2022) [2025] UGSC 31 (6 August 2025)

THE REPUBLIC OF UGANDA IN THE SUPREME COURT OF UGANDA AT KAMPALA Coram: Tuhaise, Musoke, Musota, Bamugemereire €t Mugenyi, llSC CRIMINAL APPEAL NO. 02 OF 2022 NO.19s1s SGT SOLOMON NKOJO APPELLANT Versus UGANDA RESPONDENT (Appeal against the decision of the Court of Appeal of Uganda in Criminnl Appeal No. 17 of 2018 before Knkunt, Kibeedi, nnd Mulyagonja, JJA, delittered on 21't December, 2021')' |udgment of the Court This is a second appeal by the Appellant, Sgt. Solomon Nkojo, against conviction and sentence, following the dismissal by the Court of Appeal, of his first appeal against the convictions of murder and attempted murder, and the subsequent enhancement of his sentences. Background The background to this appeal, as can be deduced from the record of appeal, is that on the 16th day of December 201,4, the Appellant, who was a police driver, was driving a Uganda Police motor vehicle registration number UP '1217, Toyota Hiace, blue in colour, transporting students who had completed a crime preventers' training in Kabalye Police Training School from Masindi to Kampala. At Katuugo Trading Centre, along the Kampala - Gulu highway in 1 Nakasongola District, the Appellant knocked down and run over two police traffic officers on duty, namely, No. 33364 Sergeant Adong Judith, and No. 52889 Corporal Omach Patrick. The two had been standing by the roadside on traffic duty with two other colleagues, namely No. 37420 Police Constable Nabukonde Lydia (PW3), and No. 291.75 Corporal Biryomumisho Stephen (PW4). As a result, Sgt. Adong died on the spot. Corporal Omach sustained serious body injuries and was rushed to hospital unconscious. In the same incident, the same vehicle knocked down and damaged beyond repair, two police motorcycles that were parked at the scene. The Appellant reported himself to Katuugo Police Post and was later detained. He was indicted with the offence of murder contrary to sections 188 and 189 of the Penal Code Act (now sections'17"1 and"l72 of the Penal Code Act, Cap 128), and attempted murder contrary to section 204 (a) of the Penal Code Act (now section 187 of the Penal Code Act, Cap 128). He pleaded not guilty to both charges. Following the trial, he was convicted of both murder and attempted murder by Masalu MuseneJ (RIP). The evidence at trial showed that the Appellant had previously been in a love relationship with Sgt. Adong Judith (deceased) which went sour; that on that fateful day, when the Appellant was driving through Katuugo, he slowed down the vehicle as he approached the traffic police officers on duty, but then suddenly accelerated it and knocked them down. He dragged them for a distance of about 13 metres ahead. He was sentenced by the High Court to 18 years' imprisonment for murder and 12 years' imprisonment for 2 attempted murder, to run concurrently, from 16th January 2018, the date of conviction. The Appellant was dissatisfied with the decision of the trial court. He appealed to the Court of Appeal against conviction and sentence regarding both offences, oide Criminal Appeal No. 77 of 2078. The first appellate court dismissed the appeal and upheld/confirmed both convictions of murder and attempted murder against the Appellant. With regard to sentence, the first appellate court found that the sentence imposed by the frial court was illegal for not considering the period spent on remand, and accordingly set it aside. Then, pursuant to section 11 of the Judicature Act, the first appellate court sentenced the Appellant to 30 years' imprisonment on the count of murder, and 15 years' imprisonment on the count of attempted murder. The Appellant was aggrieved with the decision of the Court of Appeal. He appealed to this Court against both conviction and sentence, on the following grounds:- 1. That the learned ]ustices of Appeal erred in law in confirming that the death of Sgt. Adong Judith was caused with malice aforethought, whereas not. 2. That the learned justices of Appeal erred in law in confirming that the offence of attempted murder had been proved, whereas not. 3. That the learned ]ustices of Appeal erred in law in enhancing the custodial sentences passed against the Appellant. Representation 3 At the hearing of the appeal, Mr. Kunya Henry represented the Appellant on State Brief. Mr. Kulu Idambi Boniface, Assistant DPP holding brief for Mr. Semalemba Simon Peter, Assistant DPP, represented the Respondent. Both parties filed written submissions which they adopted at the hearing of this appeal. Appellant's Submissions On ground 1, learned Counsel for the Appellant submitted that though the learned Justices of Appeal confirmed the existence of malice aforethought, there was overwhelming direct evidence of lack of malice aforethought on record. According to Counsel, this included evidence that the Appellant was driving on a highway which he rarely used, since he was not a regular commuter/traveler on that highway; secondly, that there was no possibility of the Appellant ever knowing, let alone imagining, that the deceased and her colleagues would be on the highway at the material time as to "execute his plans"; and thirdly, that there was no cogent evidence on record to prove that he was in a relationship with the deceased which went sour, thereby giving rise to a motive to end her life. It was also submitted for the Appellant that PW6 who was occupying the co-driver's seat in the said vehicle confirmed that the motor vehicle was not moving at a high speed before the accident, that there was no moment of slowing down then immediate engaging of a gear to ram into the traffic police officers, and that it was not intentional knocking. 4 On ground 2, learned Counsel for the Appellant referred this Court to lines 225 to 230 of the Court of Appeal judgment where the learned Justices of Appeal, having found that the death of Sgt. Adong was caused by the Appellant with malice aforethought, and that Corporal Omach (PWZ), simply came within the target range on account of being at the same place with the deceased at the time the Appellant executed his sinister plan to kill the deceased, they concluded that the deceased was the Appellant's target and that the injuries caused to PW2 amounted to transferred malice. He submitted that had the learned Justices of Appeal carried out their mandate as expected of them, they would have found that the issue of transferred malice does not arise whatsoever; that the fateful incident was purely an acciden! that there was no sinister plan to kill or injure any police officer found along the highway; and that the Appellant could not have set his mind on causing the death of the deceased or injuring other police officers as he embarked on the fateful trip from Kabalye Police Training School in Masindi. On ground 3 regarding sentence, learned Counsel for the Appellant submitted that, at the Court of Appeal, the Appellant's contention was that an illegal and manifestly harsh and excessive sentence of 18 years' and 12 years' imprisonment respectively had been imposed against him on the said counts of murder and attempted murder. Counsel contended that, on account of the period spent on remand not being considered, the said sentences were set aside; that, however, at no point did the Respondent file a cross appeal intimating that the custodial 5 sentences so passed against the Appellant were so lenient as to warrant any upward revision let alone enhancement. Counsel submitted for the Appellant that the learned Justices of Appeal erred in law in enhancing the custodial sentences passed against the Appellant without following the proper procedures outlined in the case of Mugasa |oseph vs Uganda, Supreme Court Criminal Appeal No. 10 of 2010. He prayed that this Court interferes with the sentences passed by the Court of Appeal, premised on the decisions of this Court in Kamya |ohn Wavamuno vs Uganda, Supreme Court Criminal Appeal No. 16 of 2000; and Kiwalabye vs Uganda, Supreme Court Criminal Appeal No. 143 of 2001. Respondent's submissions in reply On ground L learned Counsel for the Respondent submitted that the learned Justices of the Court of Appeal properly re-evaluated the evidence before them and came to the proper conclusion that the death of Sgt. Adong was caused with malice aJorethought. He contended that the learned Justices of Appeal in their judgement ably stated the law in determining malice aforethought in the offence of murder. He argued that, based on the judgement of the High Court, it is clear that the learned trial judge was alive to the law relating to evidence to prove malice aforethought. Learned Counsel for the Respondent also referred this Court to page 6 of the judgement of the Court of Appeal and submitted that the learned Justices of Appeal further scrutinized the evidence of PV'12, PW3 and PW4, which was to the effect that as the Appellant approached the 6 l deceased, he all of a sudden increased speed and knocked her down. In addition, Counsel submitted that the learned Justices of Appeal further reviewed the evidence of PW9, the officer who visited the scene of crime, who stated that the Appellant before approaching where the deceased was, either just stopped or engaged strong gears that caused holes in the ground. He further submitted that the learned Justices of Appeal also considered the evidence of PW7, the police officer who drove the vehicle from the scene, whose evidence was that he found the vehicle engaged in gear one which is ordinarily the normal gear for parking, and that such normal parking of the vehicle by the Appellant could not have happened if he had in fact lost control of the vehicle as the Appellant claimed. According to the Respondent's Counsel, the learned Justices of Appeal subjected the evidence of the lower court to fresh scrutiny and properly came to the conclusion that the Appellant had caused the death of the deceased with malice aforethought. On ground 2, learned Counsel for the Respondent submitted that the learned Justices of Appeal properly came to the conclusion that the offence of attempted murder against the Appellant had been proved to the required standards. Counsel referred this Court to page 91 line 21,5 - 225 of the record of appeal and submitted that, while reviewing the evidence of PW2, PW3 and PW6 together with that of PW9, the learned Justices of Appeal came to the inevitable conclusion that the death of Sgt. Adong Judith and the injury of Corporal Omach Patrick occurred at the same time and out of the same incident of the Appellant knocking the two police officers, who were, at the time, on duty at the same place. Counsel accordingly contended that, as such, the learned Justices of Appeal properly reviewed the evidence before them and ably stated the law before finding that the offence of attempted murder had been proved against the Appellant. Counsel relied on the definition of " attentpt" in section 359 (1) of the Penal Code Act Cap 128 to submit that the overt acts of the Appellant, that is, his act of reducing speed as if to stop, then all of a sudden engaging a high gear, and knocking the deceased and Corporal Omach in the process, and dragging their bodies for 7 metres, clearly show that he is deemed to have attempted to murder Corporal Omach within the meaning of section 359 (1) of the Penal Code. On ground 3, learned Counsel for the Respondent submitted that the learned Justices of Appeal lawfully and properly enhanced the custodial sentences passed against the Appellant. He argued that, having rightly found that the sentences passed against the Appellant were illegal, and accordingly setting them aside, the learned Justices of Appeal invoked section 11 of the Judicature Act which gives the Court of Appeal the same power as the trial court to impose a sentence of its own. Counsel submitted that, similarly, section 3a (2) (b) of the Criminal Procedure Code Act Cap'11.6 (now Cap 122) empowers an appellate court, subject to section 34 (1) to, on any appeal, alter a finding and find the appellant guilty of another offence, maintain the sentence, or with or without altering the finding, reduce or increase the sentence by imposing any sentence provided by law for the offence. In addition, Counsel referred this Court to page 12 of the learned trial Judge's judgement and submitted that, the learned Justices of Appeal agreed with the learned trial Judge that the way the crimes were committed was barbaric, crude, cruel and uncivilized, and therefore called for censure by way of a deterrent sentence. Counsel concluded in his submissions, that, therefore, the learned Justices of Appeal took into account both the aggravating factors and the mitigating factors before re-sentencing the Appellant to 30 years' and 15 years' imprisonment respectively on each count, before deducting the period he had spent on remand. 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 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 line with the foregoing 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. Ground 1 9 In ground 1, the Appellant argues that the learned Justices of Appeal erred in law when they convicted the Appellant of murder without giving the ingredient of malice aforethought due consideration. The Appellant argues that the offence was committed by accident as he had no intention of knocking the deceased; that, accordingly, there could not have been malice aforethought on his part. Secondly, the Appellant argued that there was no love relationship between him and the deceased. He also argued that he was not a regular commuter/ traveller on that road, and that there was no possibility of him knowing, let alone imagining, that the deceased and her colleagues would be on the highway. The Respondent, however, agreed with the finding of the learned Justices of Appeal that malice aforethought was proved, because the prosecution witnesses confirmed that the Appellant slowed down, then picked up speed, knocked dead the deceased, and injured Corporal Omach. The record shows that, when considering the ingredient of malice aforethought, the learned Justices of Appeal relied on the definition of malice aforethought in Section 191 of the Penal Code Act (now section '174 of t}:te Penal Code Act Cap 128), and this Court's decision in Nanyonjo Harriet & Another vs Uganda, Supreme Court Criminal Appeal No.24 of 2002, regarding proof of malice aforethought. The record also shows at page 89 of the record of appeal, that the learned Justices of Appeal noted that the learned trial Judge was well 10 II aql lno palnr daql 'os Surop uy 'lq8noqlarore arrleru o1 Suqelar sassaulrM at{l Jo af,uapr^a aql qsarJe paraplsuoc leaddy ;o sarqsnf paursal aql ler{l luau8pnf rrarp Jo 08t-g€I saull uI sMot{s promr aqJ '(srseqdua roJ paurlrapun) ,,'rt11uuoquaqq Llluap s,pasaarap aql pasnat quqladda a4l laql fuqrEssod t1&4 fuaa a pastt)t 'n{uutataq 1no las ata q)tq(n luapDut aW pa]nilo| puu papnail q)nlol snualsutDttJ Dtllo dtll puu pailtl saol pasaarap aql q)tqil ut tauuuw a+l ry.mVapAO zlllsnoynplpay.nfo qns lo arua$ua aLLI'ssnrns tnoqltLlt quu1laddt a4q Tsunt8u pasoatap aq1 wo{ sqwaldu@ aqt Euntollol aptpaw pua auaa.talffi ol paul parl aq 'a1adwaX 'paoy r[ut[ ScIe aty saot aq atqot trDLIt paw$ utF8nwu, sruae LMcl 'tnos auoS potl qcryot go1laddt aql pul pasonap aql uaal4aq drysuor1olat aaol o sottl aaql pql pauasqo a114 'pattalul aq uat lq8no4qan{u actlaw q)tqttt wo4 sa)uulsutD.u) aql utDunsD ol unn p!4 ary {o ptotat aql pallan aaul aM,, -:1eq1 (leadde ro prof,ar arlr Jo 68 aSed) luaur8pnf.rraql 1o 9 a8ed uo pagels laql uaqrrr lq8noqlaroJe arll€ur sp1\^ araql tpql SuIpuIJ rraql roJ uosear rraql ,o .trarlralo ue a,re3 uagl leaddy yo sacusn{ paurpal aqf ,,'atu{{o at11 n{a puu Swnp 'luafassa aqq lo pnpuot atfi puu paq41{u1 saun[ut {o anqau aqt 'paqa8nq rtpoq a1q lo yod 'pasn uodoaot aql su q)ns 'atual{o at17 lo snuuqstuncnt Sutpunouns a47 wo{ patta{ur aq uD Jt '.taaalloH 'nuapna Ttanp frq aaotd oq ilw.{llp atolata4l pua nptnw lo atuallo aq1 lo luaruap pluaw a """' * yfinotlqatolu at1oyt1,, -:Pal€]s aq uaqM 'lq8noqlaroJp arrleu Surdlluapr ur pallolur sarnpacord aq+ ,o arc,l,ru Appellant's arguments that he had no malice aforethought when he knocked dead the deceased. It is deducible from their judgment that there were various pieces of evidence relied upon by the learned Justices of Appeal before they made a finding of malice aforethought against the Appellant. The first related to the failed relationship between the Appellant and the deceased. Though the Appellant's evidence was that he did not know Sgt. Adong (the deceased) and was not in a love relationship with her, PW1 Denis Kamugisha testified that in 2011, the Iate Sgt. Adong sought his (PW1) intervention as DPC Jinja Road Police Barracks, and as her superior, to stop the Appellant from going to her home in the Barracks, as she had developed misunderstandings with him. PW1 testified that he warned the Appellant not to come back to the barracks, and the accused (Appellant) left the barracks. The second related to the manner in which the deceased was killed. The learned trial Judge referred to it as strange that a police officer killed a fellow police officer on duty. The record shows that the learned Justices of Appeal, in making their decision, relied on the evidence of PW2, PW3 and PW4, who were all present at the scene of crime when the incident happened. The evidence of the said witnesses was similar and consistent. All of them stated that they saw the police vehicle approaching them; that it slowed down; picked up speed; and knocked dead Sgt. Adong Judith. 1,2 The third piece of evidence related to the other circumstances which preceded and followed the incident. At page 89, line 135 -140, of the record of appeal, the Iearned Justices of Appeal found that the conduct of the Appellant during and after the incident was not that of an innocent man. The Appellant stated that he lost control of the vehicle and he could not brake. The evidence of PW5 AIP Joseph Akera, an Inspector of Vehicles, however, showed the contrary, to the effect that he carried out a road test and inspected the vehicle after the incident, and reported that the motor vehicle had no defects before the incident. This shows that the vehicle was in proper working condition before the incident. The evidence of PW7 Corporal Driver Odvara Tau Stephen was that he was instructed to remove the accident vehicle from the scene and he drove it; that he found it parked and in gear one, which was normal and what is supposed to be done. However, he added that the vehicle could not be parked in gear one if one had lost control of it. PW9 ASP Ssekalema Hussein who drew the sketch plan of the scene of crime noted that as the driver was approaching the diversion sign, either he stopped or engaged a strong gear, as the behind wheels dug a hole. He added that after the point of impact, the accused dragged the knocked person to a distance of 13 metres. This was consistent with the evidence of PW4 which showed that the body of the deceased was dragged ahead by the vehicle. PW4 added that as a senior traffic officer and a senior driver, he knew that a vehicle in low gear cannot jump at that speed and drag people to that distance. 13 PW9 added that the movement of the vehicle tyres indicated that the Appellant dodged a metallic sign post at the junction which was strong enough to stop the vehicle. The foregoing pieces of evidence re - evaluated by the learned Justices of Appeal show that the vehicle was in proper working condition; that the Appellant opted to knock the police officers as opposed to a metallic sign post that was before them; that the speed on the vehicle was increased before it knocked the deceased; that after the deceased and Corporal Omach were knocked, they were dragged ahead for a distance; and that, after that, the Appellant parked the car normally. Malice aforethought as an ingredient of murder can only be ruled out in the event of an accident or defence of property or person, neither of which were the case in the circumstances of the case giving rise to the instant appeal. In absence of a substantial defence, the circumstances of the case will be relied on to prove malice aforethought. The record shows that this is what the learned Justices of Appeal did when they agreed with the finding of the learned trial Judge that the ingredient of malice aforethought was proved, and they accordingly upheld the High Court's conviction of the Appellant. On that basis, and based on the applicable laws, the learned Justices of Appeal properly re - evaluated the evidence as a whole. They cannot be faulted for arriving at the conclusion that the death of Sgt. Adong Judith was caused with malice aforethought. Ground 1 of this appeal fails. t4 Ground 2 Learned Counsel for the Appellant faulted the first appellate court for upholding the conviction of attempted murder against the Appellant by relying heavily on the evidence relating to Sgt. Adong Judith's death, which he stated was an accident. He also faulted the learned Justices of Appeal's alluding to transferred malice when the fateful incident was an accident. The record shows, at page 10 of the Court of Appeal judgement, lines 232-245, that the learned Justices of Appeal stated as follows:- "We accept the respondent's submission that the incidental injuries caused to PW2 corporal Omach Pntick amounted to transferred malice by the appellant to PW2. Wrcn the appellant set out to cause the death of W/Sgt Adong by ramming the motor ttehicle into her, he uns driuing into the deceased and her colleagues, he did not care thnt others may be injured nnd or killed by the same actions tnrgeting W/Sgt Adong. This indifference as to the outcome of his oaert nctions of ramming the oehicle into W/Sgt Adong and others brought the appellant uithin the ambit of 5.191(b) of the Penal Code Act tohich defines "nnlice aforetlnught" to include; Knowledge that the act or omission causing death uill probably cause death of some person, ztthether such person is the person acfually killed or not, although such knouledge is accompanied by indffirence uhether death is caused or not, by a wish that it may not be caused." In evaluating the evidence relating to the offence of attempted murder, the learned trial Judge and the learned Justices of appeal rightly stated 15 that the late Sgt. Adong and Corporal Omach were knocked by the same vehicle, and that the offences were committed during the same incident and at the same time. Whereas Sgt. Adong died on the spot, Corporal Omach was grievously injured. He remained unconscious for five days and it took him a month to recover. The learned trial Judge also noted that Corporal Omach's mobility was reduced to walking on crutches. The learned Justices of Appeal found that whereas Sgt. Adong Judith was the main target of the Appellant, Corporal Omach, by being at the scene at the same time as the deceased, came within the target range as the Appellant executed his plan to kill the deceased. The Appellant, in total disregard of the life of Sgt. Adong and the others who were with her, drove the vehicle which actually killed Sgt. Adong and dangerously harmed Corporal Omach. On account of the testimonies of PW2 Corporal Omach himself, PW3, PW4, and the doctrine of transferred malice having been correctly applied by the learned Justices of Appeal, the conviction of the Appellant was proper. Ground 2 of this appeal fails. Ground 3 The Appellant's main grievance in ground 3 was the enhancement of his sentence by the Court of Appeal. The trial court sentenced the Appellant to 18 years' imprisonment for murder, and "12 years' imprisonment for attempted murder, to run concurrently. The first appellate court, however, sentenced the Appellant to 30 years' imprisonment for murder and 15 years' imprisonment for attempted 16 murder, also to run concurrently. This was after making a finding that the learned trial Judge had not taken the period spent on remand into consideration, upon which the learned Justices of Appeal set aside the sentences of the High Court. They then invoked section 11 of the Judicature Act to impose fresh sentences against the Appellant for the two offences of murder and attempted murder. The sentences of the Court of Appeal were more serious than those of the High Court which they had set aside. The Appellant's grievance in this appeal is that the Respondent had not cross appealed, neither was he (the Appellant) given notice of the sentence possibly being increased. In his submissions before this Cour! his counsel argued that it was erroneous for the learned Justices of Appeal to enhance the High Court sentences without complying with the procedures outlined in the case of Mugasa |oseph vs Uganda, Supreme Court Criminal Appeal No. 10 of 2010. The record of the court proceedings of 29th March 2012 (when the matter was heard at the Court of Appeal) shows that the issue of sentence enhancement did not arise, neither was it discussed. It was not a subject of the appeal, neither had the Respondent cross appealed on it. The question then is, does an appellate court have to notify a person, if on its own motion, it finds reason to enhance that person's sentence? It must be clarified that, as we consider this issue, we are alive to the provisions of section 5 (3) of the Judicature Act which avails the 77 Appellant a right of appeal to this Court on a matter of law, not including the severity of sentence. In that respect we shall entertain this issue in as far as it relates to the procedure adopted by the Court of Appeal when enhancing the sentence imposed on the Appellant, as opposed to the severity of the sentence imposed against him by the same court. Regarding the appeal before us, the record of appeal shows at page 12 of the judgment of the Court of Appeal, lines 289 to 295 that, while sentencing the Appellant, the learned Justices of Appeal stated:- "As rightly obseroed, tlis case presented a strange state of ffiirs in that n felloto police officer killed. a colleague on duty and seriously injured another. ln as nruch as the "nrcn/tuomen in uniform" are not any less human than the other human beings, their position imposes specinl obligation upon them to exercise maximum self-restrain (sic). They should be the pace setters in respecting the lau, respect the right to life of their colleagues and protect the members of the general public and their property." In the final decision, at page 13 of the judgment of the Court of Appeal lines 329 to 343, the first appellate court declared that:- "1... 2. The nppeal ngainst sentence is allouted and the sentences of 18 years and 12 yenrs imprisonment imposed by the High Court for the offences of murder and attempted murder respectiaely are lweby set aside. We nottt snbstifute the sentences as beloztt. 18 3. We haue considered both the aggraoating and mitigating factors that tue haae set out in this judgment, ute consider n term of imprisonment of 30 years for the offence of murder would meet the ends of justice. Taking into account the 10 months spent in pre-trial detention, rlte nou sentence the appellant to sertte a term of 29 years and 2 months' impisonment on Count L 4. We consider a term of imprisonment of 15 years to be appropiate for the ffince of attempted murder. Taking into nccount the 10 months spent in pre-tial detention, Ttte nolt, sentence the appellant to serue a term of 14 years and 2 months' imprisonment in respect of Count ll. 5. Both sentences shall run concurrently from the 16th day of lanuary 2018, the date of conaiction." In resolving the issue at hand, the first principle to consider is that set out by this Court in Kiwalabye Vs Uganda, Supreme Court Criminal of Appeal No.143 of 2001, that- "Tlrc appellate court is not to interfere with sentence imposed by a trinl Court tuhich has exercised its discretion on sentence unless the exercise of the discretion is such that the tial Court ignores to consider an important mntter or circumstances tohich ought to be considered uhile when passing sentence." The second principle to consider was set out by this Court in Mugasa |oseph vs Uganda (supra) when considering an appeal where the facts were similar to the instant appeal in all material particulars. A similar issue arose relating to the procedure the Court of Appeal adopted in enhancing the sentence against the appellant in that matter. After 19 appreciating that the Court of Appeal has powers to set aside the appellant's sentence and substitute it with an enhanced sentence, this Court nevertheless held that proper sentencing procedures must be followed when varying sentences imposed by lower courts. In particular, this Court held firstly, that the Court of Appeal ought to have warned the Appellant of a probable enhancement of sentence; secondly, that the Respondent ought to have filed a cross-appeal which would at least act as a warning to the Appellant of a potential enhancement of sentence(s). The decision in Mugasa ]oseph vs Uganda (suprn) was relied on with approval by this Court in the later judgment of Busiku vs Uganda [201s] UGSC 3. Applying the foregoing principles to the instant appeal, we have appreciated the Respondent's submissions that, in enhancing the appellant's sentence, the learned Justices of Appeal invoked section 11 of the Judicature Act which gives the Court of Appeal the same power as the trial court to impose a sentence of its own, and that, similarly, section 34 (2) (b) of the Criminal Procedure Code Act Cap 116 (now Cap 122) allows a discretion to an appellate court, on any appeal, to, among other things, maintain the sentence imposed by a lower court, or with or without altering the finding, reduce or increase the sentence by imposing any sentence provided by law for the offence. However, guided by the principles set out by this Court in Kiwalabye Vs Uganda (supra) and in Mugasa |oseph vs Uganda (suprn) as laid out above, we are of a well-considered opinion that though the Court of 20 Appeal is empowered under section 11 of the Judicature Act and section 34 (1) & (2) (b) of the Criminal Procedure Code Act to set aside decisions of the lower court and substitute them with its own sentences, including enhancing the same, it must observe proper sentencing procedure when varying such sentences. In particular, regarding the circumstances of this appeal where the State neither filed a cross appeal nor sought enhancement of the appellant's sentence during the appeal, nor did the Court of Appeal warn the Appellant that his sentences would be enhanced before it enhanced it, such procedure is unlawful. It is on that basis that we make a finding that the learned Justices of Appeal erred in law in enhancing the Appellant's sentences for murder and attempted murder. We accordingly set aside the sentences imposed against the Appellant by the Court of Appeal. Having set aside the sentences imposed against the Appellant as stated in the foregoing paragraph, we shall invoke section 7 of the Judicature Act which gives this Court the power of the original court of jurisdiction, and proceed to sentence the Appellant after considering the aggravating and the mitigating factors as at the time he was convicted. The mitigating factors were that the Appellant was a first time offender, was remorseful, had family responsibilities, and was of advanced age (55 years old), suffering from HIV/AIDS for which he was on treatment. 27 The aggravating factors were that the offences which the accused was convicted of are grave, and were committed, as observed by the lower courts, in a barbaric, crude, cruel, and uncivilized manner. The victims of the offence were police officers on duty. The deceased Sgt. Adong, left young children and her mother. The second victim lost normal mobility and moves on crutches. Having considered both the mitigating and the aggravating factors above, this Court finds a sentence of 18 years' imprisonment for the offence of murder and 12 years' imprisonment for the offence of attempted murder appropriate in the circumstances. We deduct the period spent on remand which was 10 months. The Appellant shall accordingly serve a term of '17 years' and 2 months' imprisonment for murder; and 1.1 years' and 2 months' imprisonment for attempted murder, to run concurrently, from 16th January 2018, the date of conviction. Ground 3 of the appeal succeeds. All in all, this appeal fails on grounds 1, and 2, and is accordingly dismissed to that extent; and succeeds on ground 3. We accordingly order as follows:- 1. The convictions of murder and attempted murder imposed against the Appellant be upheld. 2. The sentences imposed against the Appellant by the Court of Appeal are set aside and substifuted by sentences to serve a term of "17 years' and 2 months' imprisonment for offence of murder; 22 and 11 years' and 2 months' imprisonment for attempted murder, to run concurrently, from 16th January 2018, the date of conviction. Dated at Kampala thi"........b. IF day of.. 2025. I !\ Percy Night Tuhaise Justice of the Supreme Court Elizabeth Musoke |ustice of the Supreme Court fl)'^"[7*J-) Stephen Musota ustice of the Su preme Court Catherine Bam gemereire |ustice of the Supreme Court Monica Mugenyi ]ustice of the Supreme Court t 23 l,$^-S/..l