Mwesige and 2 Others v Uganda [2023] UGSC 53 (12 October 2023)

Derri, L tt}--"." I rr+- u c.lrtr^ Io >3 THE REPUBLIC OF UGANDA IN THE SI.]PREME COURT OF UGANDA AT KAMPALA Coram: Mwondha, Tibatemwa-Ekirikubinza, 'l-uhaise, Chibita, Musota, JJ. SC CRIMINAL APPEAL NO. I2 OF 20I8 MWESIGII ADOI,IT AUSI OBEDI NPELI-ANTS MUHENDA KABUI,ITI.A BENEZAR VIlRSUS UGANDA:::: RESPONDTJNl' (Appeal against the judgment and decision of the Court ofAppeal ot Kampala in Criminal Appeal No. 76 of 2014 before; Kakuru, Egonda-Ntende, Musoke, JJA dated 20'h March 201 8) JUDGMENT OF THE COURT l'his is a second appeal lodged by the appellants, aggrieved and dissatisfied with the decision of the Court of Appeal. There were four grounds of appeal as embodied in the Memorandum of Appeal as lbllows: - l. The Leamed Justices of the Court of Appeal erred in law when they relied on weak and unreliable DNA evidence to confirm the conviction of the offence of murder and Aggravated robbery leading to a miscarriage ofjustice. 2. The Leamed Justices of the Court of Appeal errcd in law when they found that the 2nd Appellant had been properly identified at the scene of crime here by wrongly confirming his conviction of the offence of murder and aggravated robbery. 3. The Learned Justices of the Court ofAppeal erred in law when they held that the 3'd Appellant participated in the commission of the offcnces of murder and aggravated robbery thereby wrongly confirming his conviction. 4. The Leamed Justices of the Court of Appeal erred in law when they confirmed the appellants' conviction based on weak and unreliable circumstances which did not inesistibly point to the guilt of the appellants. In the altemative but without prejudice 5. The Leamed Justices of the Court ofAppeal erred in law when they sentenced the appellants to sentences which were based on wrong legal principles and did not consider mitigating lactors of the appellants. I 2 J 1 We have to mention at this point that the Coram above was as a result of reconstitution. The reason being that alter hearing thc appeal but befbre delivery of the judgment, two Justiccs could not sit as one rvas ill and another was called by the Lord. May his soul rest in peace. It was necessary to rehear the appeal to I'acilitate delivery ofthejudgment. Background. The three appellants were indicted with two chargcs, (l) murder C/S 188 and 189 of the Penal Code Act and (2) Aggravated Robbery C/S 285 and 286 ofthe Penal Codc Act. They were tried in the High Court where they pleaded not guilty to the two Counts as charged. All the three appellants were convicted and sentenced to 50 years' imprisonment cach on count I . A I and A2 were sentenced to 27 years' imprisonment each. while A3 was sentenced to 36 years' imprisonment on count 2 to run consecutively. It was alleged by prosecution that the three appellants and others still at large, at Katooza Village in the Kyenjojo District murdered one Asa Rogers on Count I . And on the 2nd Count it was alleged that the appellants and others still at large at Katooza village above stated robbed Asa Rogers ofhis motorcycle and during the said robbery possessed a deadly weapon. to wit, a panga. They were dissatisfied with the High Court decision and appealed to the Court of Appeal against both conviction and sentence. The Court ofAppeal partially allowed the appeal against sentence and resentenced A I , ,A.2 and A3 to 20 years' imprisonment on Count I of murder C/S 188 and 189 of the Pcnal Code Act. The Court of Appeal also resentenced A I , ,A'2 and ,A,3 to 18 years' imprisonment on Count 2 ofAggravated Robbery C/S 285 and 286 ofthe Penal Code Act. The appellants were dissatisfied with the decision of the Court of Appeal hence this Appeal. Representation. At the hearing, the appellants were represented by Mr. Sebugwawo Andrew on state brief and the respondent was represented by Ainebyona Happiness, Chief State Attomey, of DPPs Office who was holding brief for Nabasa Caroline. Submissions; Both Counsel had earlier filed written submissions, which they maintained at the rehearing of the appeal. 2 Ground I Counsel for the appellant contended that the learned Justices of the Court ofAppcal erred in law when they relied on the weak and unreliable DNA evidence to confirm the conviction ofthe appellants ofthe offence of murder and aggravated robbery which led to a miscarriage ofjustice. Counsel submitted that according to the judgment of the Court of Appeal at page 12, Court stated that. it found no evidence that there was a break in the chain of exhibits or that they had been irregularly handled, an attempt could have been made to wash off the blood and further that the blood on the jumper could have been contaminated but it was the blood of the deceased that was found on the l't appellant's clothes. Counsel submitted that the Court of Appeat failed in its duty to effectively re- appraise the evidence and hence arriving at a wrong conclusion. The wrong conclusion being that A I testified that the trouser was his but that the jumper belonged to Rwamwenge Ngoyi whom they were staying with. That the same jumper was not under his bed, inter alia. Counsel further submitted that the Court ofAppeal wrongly stated that the evidence linked A1 to the crime without there being very serious laboratory tests. That therefore the Court of Appeal did not re-evaluate the evidence. Counsel submitted that both High Court and Court of Appeal acknowledged the moderate genetical evidence for the proposition that exhibit A6 was the potential contributor of exhibit .A3 but failed to link it to Al in the moderate genetical evidence meant that it was not scientifically proved that it matched with exhibit 43. Counsel submitted in the alternative that even though the same would have matched, the l.tappellant testified that the trouser was not his but his brother's, whose names he gave but prosecution gave a deaf ear. He also pointed at the locks to the house which had been already broken. which ordinarily gave room for fabrication ofany kind of evidence as it was, with blood samples on the jumper. In conclusion, counsel submitted that the learned Justices relied on weak and unreliable DNA and failed to re-appraise the evidence, which resulted into wrongly confirming the conviction on the offences of murder C/S 188 & 189 and Aggravated Robbery C/S 285 & 286 ofthe Penal Code Act. Ground 2 The complaint was that, the learned Justiccs of the Court of Appeal erred in law when they found that the 2nd appellant was properly identified at the scene of crime, thereby wrongly confirming his conviction of the two offences. Counsel submitted that, the evidence that was given by PW6 and PW9 was fabricated' That the 2nd appellant stated that he was home and he never saw PW6 that night. That according 3 to the rccord of procee dings ol'the High courl at Page I 7, PW6 told Court that he saw thc 2nd appellant in liont of him and that he was his friend. That hc evcn did not greet him at all. but PW6 ncver reported his alleged attack to police. The record showed that the High Court said, that th<: evidcnce was made volunlarily while in Police Cclls to the witness as a fellorv prisoner. Thc High Court recorded that much as it was of little cvidential value it rvas relevant and uscltl in corroboration of other pieces ofevidence. Further the High Coun recorded that the 2nd appcllant did not dcny talking to PW6 in the Police Cells at Kyenjojo. I1c only denied having made a confession to a I'ellow prisoner or anybody else. Counsel submitted that the Court of Appeal stated that the testimony of PW6 was corroborated by PW9 and PW6 but gave no rationale on how PW5 evidencc corroborated. Ile lurther submitted that the Court ofAppeal stated that the evidence against appellant 3 was corroborated by PW9 and PW7 but it never gave any explanation for the conclusion. counsel contended that in Iine rvith section 23 olthe Evidence Act. cap. 6, the 2"d appellant had to make a confession before a Police Olficer ofor above the rank of Assistant Inspector or a Magistrate as opposed to PW9. That according to the record Al denied making the allegcd confession and thc High Court ncver conducted a trial within a trial to prove the truthfulness of the confession. Counsel therefbre submitted that the fabricated evidence could not colroboratc that ol'PW9. Ground 3 counsel submitted that the court ofAppeal Justices erred in holding that the 3'd appellant participated in the murder and aggravated robbery as alleged by the prosecution. Counsel submitted that the Court of Appeal only stated the evidence of PW5 against the 3'd appellant which was corroborated by that of PW9 and not PW7. Counsel submitted further that the evidencc of PW7 that he was told by the 3'd appellant how he tracked the deceased with Nyakahuma Godfrey was hearsay and could not qualify to be a confession. Counsel submitted that it was therefore wrong for the Court of Appeal Justices to rely on it. Ground 4 Counsel submitted that thc lcarned Justices of thc Court of Appeal erred in law. when they relied on weak and unrcliable circumstantial cvidcncc which did not irresistibly point 1tl the guilt of the appellants. Counsel cited thc case olSimon Musoke V R [1958] EA 715 it rvas held "where a case depends on wholly or partially on circumstantial evidence the Court must find before deciding to convict that the inculpatory facts are incompatible with the innocence of the accused and incapable of explanation upon any other reasonable hypothesis than that of guilt. circumstantial evidence must 4 Ground 5 This was submitted upon in the alternative and without prejudice. The complaint was that the learned Justices of the Court of Appeal erred in law to have sentenced the appellants to sentcnces which were based on wrong legal principles and did not consider mitigating factors fbr the appellants. Counsel submitted that, though hc mitigated and stated that the convicts wcre first offenders who can be easily rehabilitaled and considering the period spent on remand, the leamed Justices ofthe Court ofAppeal re-evaluated and considcred only their being young, and the period thcy stayed on rcmand. They did not consider that they can casily be rehabilitated and serve this country in other useful capacities. Counsel prayed that this appeal succccds, or in the alternative, this Court sets aside the sentences imposed by the Court of Appeal, takes into account all the mitigating factors and reduces the appellants' sentences to l5 years on count I ofmurder C/S 188 and 189 of the Penal Code Act, and l5 years' imprisonment on the aggravated robbery C/S 285 and 286 of the Penal Code Act. Respondent's submissions. G round I Counsel submitted that PWI AIP Wamala Tumwanye at page l0 of the High Court record of proceedings testified that the jumper was recovered from the appellant's bed in the 5 always be narrowly examined and it is necessary before drawing an inference of the accused's guilt from such evidence to be sure that there are no other existing circumstances which would weaken or destroy the inference." Counsel submittcd that the DNA evidcnce was not conclusive due to the various interpretations it rcccived. Counsel pointed out: - (a) The fact that a combination match index shorved moderate genetical evidence lor the proposition that exhibit r\6 is the potential contributor of EX A3 (PWS) (Godfrey Onen) testified that "A mixture analysis shows a combination or other DNA thcre. and we could not rccover much, the signal of the machine failed to pick that. (b) The fact that the jumper belonged to the l" appellant as the lsrappellant had testified that the jumpcr did not belong to him but for the brother and that the same was not lound under his bed, and that this evidence had to be exhaustively re-evaluated which was not the case. appcllant's house. That this evidence was not challenged in cross-examination regarding the ownership of the jumper. Counsel submitted that the Court of Appeal fully executed its duty to analyse the evidence and quoted page 25 of the record ofAppeal as fbllows: - "Mr. Godfrey Onen a Governmcnt Laboratory Analyst tcstified that he nalysed the blood samples by the Police. '[he blood on the first appellant's trouser matched that of PW5's girlfriend. The jumper had a cornbined index and shorved contamination or other DNA. The combined match showed moderate genetical evidence lbr the proposition that the deceased was the potential contributor. In cross-examination he explained "the moderate is conclusive without error". Counsel lurther submitted that the testimony ol' PW8 corroborated the testimony of PW2 which enabled the Court of Appeal to come to the correct conclusion and it did not err in law when it relied on the evidence of DNA to confirm the conviction. It considered DNA evidence together with other circumstantial evidence on record. Ground 2 Counsel submitted that thc conviction of the 2nd appellant was correctly confirmed by the Court of Appeal. That PW6 one Kaija Joseph testified that on the 10/02/201I when he rvas coming from Kyenjojo town at 9:30pm, he saw a motorcycle with headlights on. That hc recognized the 2nd appellant. That a group ofabout 4 to 5 peoplejumped from the bush and tried to attack him, and it was the 2nd appellant who said, this is not the one, this is a I'ellow boda boda. That he was beaten but left to go. Counsel Iurther submitted that next day he received information that Asa Rogers (deceased) was murdered at the very spot the same night. That there was definitely no other explanation apart lrom the participation of the 2nd appettant in the murder of the deceased. The words of thc 2nd appellant showed that they were indeed waiting lor their target who happened to be the deceased. There is overwhelming circumstantial evidence regarding the participation of the 2nd appcllant in the murder of the deceased since he was murdered at the very location PW6 was attacked lrom the same night and has been correctly identified. Counsel submitted that the Court of Appeal on pages 26 and 27, the leamed Justices re- cvaluated the evidence as a whole not in isolation of circumstantial evidence and estabtished that the 2nd appellant was positively identified by PW6 whose testimony rvas believable and was corroborated by that of PW9 and PW7 and rightly concluded that the evidence adduced though circumstantial was incapable ofany other explanation than that of guilt of the 2nd appellant. 6 Ground 3 The cornplaint was that the lcarned Justices ofthc Court ofAppeal erred in law to hold that the 3'd appellant participatcd in thc commission of the offences of murder and aggravaled robbery which resultcd in thc rvrong confinnation of his conviction. Counsel submitted that PW3 No. 42718 Corporal PL Wako Patrick testified that he participated in the arrest of the 3'd appellant who at the time was hiding in Kisenyi Kampala. 'l'hat as they rvere going to Kyenjojo the appellant revealed to him that he participated in the murder ol Asa Rogcrs (deceased). The learned Justices, relied on the evidence of PW5, PW9 and PW7 to uphold the conviction of the 3'd appellant. Counsel further submitted that PW9 (Mugume Ismail) who was in police custody with the 3'd appellant testified at page 23 of the High Court record of proceedings that the 3'd appellant confided in him and revealed that he had participated in the murder of the deceased. Counsel submitted that this evidence was not challenged even in cross- examination. Counsel submitted that at page l9 of the High Court record ofproceedings, the 3'd appellant revealed to PW? (Karamagi Bright) that he had traited the deceased together with the 2nd appellant, the chief mastcr planncr ol'the crime. That the I't appellant, together with others murdered the deceascd, Rogers. Counsel submitted that when the 3'd appellant told PW9 and PW7 it was being done independently and separately. Counsel submitted that the learned Justices at page 27 of the Court of Appeal record of proceedings said among others, that they found that evidence adduced against the thee appellants although circumstantial was incapable ofany other explanation except the guilt of the appellants. Ground 4 The complaint was that the leamed Justices of the Court of Appeal erred in law to confirm the appellants' conviction based on weak unreliable circumstantial evidence which did not inesistibly point to the guilt of the appellants. Counsel submitted that the learned Justices of the Court of Appeal re-evaluated the evidence and found that the circumstantial evidence inesistibly pointed to the guilt of the appcllants. Counscl rclicd on Byaruhanga Fodoni Vs. Uganda, Supreme Court Criminal Appeal No. l8 of2002 (unreported). 7 Counsel submitted that the learned .lustices of thc Court of Appeal considered the direct evidence and thc circumstantial cvidence on record as a whole not in isolation to conllrm the convictions as testified by PW2. PW3, PW5. PW6, PW7. PW8 and PW9. Ground 5 The complaint was that the learned Justices erred in law when they scntenced the appellants to sentences based on wrong lcgal principles without considering mitigating factors. Counsel submitted that section 5 ol'the Judicature Act provides that thc Appeal has to be on a matter of law only. And section 5(3) of thc Judicature Act p rovides that the accused person may aplreal to the Sun reme Court asainst sentence or order on a matler of law not including severitv of the sentence. Counscl submitted that the sentenccs im posed by the Court o1 Appeal are lcgal. And the learned Justices considered mitigating factors as showed in the judgment. Counscl submitted that the omission in the judgment to mention the words rehabilitation and resourcefulness of the appellants did not render the sentences illegal. Counsel submitted that the appeal lacked merit and prayed that this court upholds the conviction and sentence and dismiss the appeal. Consideration of the appeal This is a second appeal against the Court ofAppeal decision ofconviction and sentence of the appellants. The duty ol'the second appellate Court is to find out whether the tirst appellate Court in approaching its task applied or failcd to executc its duty. The duty ofthe first appellate Court is to reconsider and re-evaluate the evidence presented before thc trial Court and the materials thcre to. The I't appellate Court must then make up its mind not disregarding the judgment appealed lrom but carelully weighing and considering it. (See Pandya Vs. R 11957] EA, Tito Buhungiro Vs. Uganda, SCCA No. 8 of 2018, Kifamunte Henry Vs. Uganda, SCCA No. l0 of 1997) that "it's only in exceptional circumstances, where the second appellate Court may havc to interfere with the findings of the lower Courts on record, when it is provcd that the lowcr Courts were manilestly wrong on the finding of fact in order to oblige this Court to re-evaluate to ensure that justice is properly timely done." We carefully studied the Court record, considered the submissions of both Counsel and thc authorities relied on. It is a fact that this case depended mostly on circumstantial evidence as there was only one direct or eye witnesses' in the identification of the 2nd appellant at the scene of crime. Thc principles to be followed u,hen determining this kind of case were settled in the Court of 8 Appeal tbr East Aliica and other common rvcalth jurisdictions. In Musoke V R [19581 EA 715 it u,as held "...the inculpatory facts tnusl be incapablc of explanation with the innoccncc ol'the accused person upon any othcr reasonablc hypothesis than that ol guilt (sce Teper V R Il952l 2 All ER 44). We are alivc to Rule 30 of this Court Rules which provides: - where the court of Appeal has reversed, confirmed or varied a decision of the High Court acting in its original jurisdiction, the Court may decide matters of law or mixed law and fact, but shall not have discretion to take additional evidence. We shall bear in mind those principles to determine this appeal. The three appellants were indicted on two charges. ( I ) murder c/S 188 and 189 ofthe Penal Code Acr and on count (2) ofAggravated Robbcry C/S 285 and 286 ofthe Penal Code Act. They were convicted by the High Court trial Judge. 1-he conviction was confirmed for all the three appellants and on the two counts. by the Court of'Appeal. 'l'he sentences were varied by the court of Appeal for failure to apply the principle in Rwabugande Moses v Uganda, SCCA No. 25 of 2014 of deducting mathematically thc period spent on remand. We carefully studied the Court of Appeal record which included the record of proceedings from the trial court and both judgments. Altcr careful study of the same we found the following: - Ground I The complaint was that the learned Justices of the Court ofAppeal erred in law to rely on weak DNA evidence to confirm the conviction of the appellants which caused a miscarriage of justice. The record of the Court of Appeal showed clearly that after re-evaluation of the evidence part of which has been reproduced in this judgment found that the DNA evidence of the jumpcr, linked the l,tappellant to the crime and therc rvas no evidence breaking the chain ofexhibits or that they had bcen irregularly handled. Thcjumper was not found at the scene of crime and therefore there was a possibility of mix up with the deceased blood. That an attempt could have been made to wash off the blood. PW8 the Government DNA analyst stated that a mixed index analysis showed a combination of other DNA but it was the deceased's btood that was found on I't appellant's clothes. The l't appellant was seen by PW5, the girlfriend of the 3'd appellant and both the l't appellant and the 3'd appellant were riding a motorcycle with no head lamps. The motorcycle was black with red parts and had no number plate. The motorcycle had bee n hidden behind PW5's house. Upon re- 9 evaluation of the evidence ol' PW6 it revealed that the peoplc who attacked him immediately beforc the deceased was killed at thc same place had a panga and had cut off his motorcycle head lamps. PW6 testilied lhat he had rccognized thc 2nd appellant. At page 8-28. the Justices of the Court ofAppeal re-cvaluated the trial Court record ofproceedings. which showed that the cvidcnce was considered as a whole not in isolation regarding all the evidcnce against all the appellants. The cvidence of PW1 who arrived carly at the scene of crime fbund the deccased's body in a pool olblood with deep cut wounds on his head and back. Thcre was a panga at the scene ol crime, a motorcycle helmet, a pair ol- pants, riding gloves and a bag containing various items. These items were exhibited and an exhibit slip was tendcred in Court. The follorving day the I't appellant was arrested by PW2 a police oI'ficer following a tip off. The I *t appellant led PW2 to the house of the 2nd appellant where a pair of trousers brown in colour was recovered together with a green jumper under his bed. Both had blood stains. The 1't appcllant's explanation was that the blood was for his girllriend who he had sex with when she was in her menstrual period. PW8 obtained blood samplcs from the I't appellant, the deceased's father and PW5 the girlfriend named by thc l't appellant. The samples werc marked and taken to the laboratory analyst and an exhibit slip was presented and tendered in Court. PW8 the Government analyst analyscd the blood samplcs obtained by police. The analyst stated that the blood on the jumper had combined indcx and showed contamination or other DNA. -l'hat the combined match index showed moderate genetical evidence lbr the proposition that the deceased was the potential contributor. From thc foregoing, wc were satisfied that the DNA evidence was not weak bccause it was not being considered in isolation of the irrcsistible circumstantial evidence that pointed to the guilt of the appellants. (See Musoke Simon V R (supra). This ground fhils. Ground 2 The complaint was that the learned Justices of the Court of Appeal erred in law when thcy found that the 2'd appellant had been properly identilled at the scene of crimc resulting in wrongly confirming his conviction on murder and aggravated robbcry thereby causing a miscarriage of justice. The learned Justices of the Court of Appeal reproduced what PW2 testilled at the trial, as they re-evaluated the evidence and stated that the 3'd appcllant maintained that it was the I't and 2nd appellants who murdered the deceased. l'he learned Justices reproduced PW6 testimony when he stated that he recognized the 2nd appellant. The learned Justices produced what PW9 stated when he reported at police and he gave a detailed accounl of 10 how the 2nd appellant Ausi Obedi revealed to him how he and others had killed the deceased because he had recognized them. He also named the l't and 3'd appellants. This is a case which depended on partly circumstantial evidence. But for identification of the 2nd appellant, there was some direct evidence since the witness PW6 knew A2 as he testified and there was light from his motorcycle which these assailants cut offafter he had recognized him and heard him say that, he was not the target and they beat him but left him to go. There are principles laid down as to establish proper and correct identification like: - l. ii. iii. iv. Ifthe witness knew the accused The distance from which the witness was observing the accused The time taken The source of light available. (See Kidega Joseph & Okot Justino, SCCA No. 07 of 2019. This relied on Beingana Kanoni Willy v Uganda SCCA No. 20 of 2009 (unreported) which referred to Abdalla Bin Wendo v R Il953l EACA 166 laid dorvn the conditions to be considered for favorable and correct identification in Bogere Moses v Uganda SCCA No. I of 1997 this cited the case of Kasana v Uganda AC No. l2 of 1981 with approval, where it was hcld, inter alia, that there is need to look for other supporting evidence if the conditions I'avouring identification are diffi cult. We are satisfied that the light that came from PW6's motorcycle before the head lamps were cut off was sufficient. And even the fact that PW6 knew the appellants and he also identified one of the appellants, A,2 by his voice. This evidence considered together with the rest of the circumstantial evidence as reproduced by the learned Justices of the Court of Appeal as per the record, we were satisfied that there was no mistaken identity and therefore the 2nd appellant was properly identified at the scene of crime. Ground 3 The complaint was that the leamed Justices of the Court of Appeal wrongly confirmed the 3'd appellant's participation in the commission of the offences of murder and aggravated robbery. From that re-evaluation of the evidencc on record, the Court ofAppeal camc up with their own independent conclusion that PW9 testimony tallied with the rest of the circumstantial evidence linking the l't, 2nd, and 3'd appellants to the commission of the crime. And that there was no way PW9 who was completely unrelated to the appellants or the deceased could have known such detail. 1t We are salisfied that the learned Justices after re-evaluation and rc-considcration of the evidence on record rightly confirmcd the conviction ofthe 3'd appellanl. This ground iails. Ground 4 The conrplaint was that the learned Justices olthe Court ofAppeal erred in law when they confirmed the appellants' conviction in the absence of strong irresistible circumstantial evidence pointing to the guilt olthe appellants. We are satisfied from what we have already stated above that the learned Justices did not err in law or at all to confirm the conviction of the appellants. This ground also fails. Ground 5 the complaint was that the sentenccs imposed on each of the appellants were based on wrong principles, without considering mitigating factors. That thc learned Justices of the Court ofAppeal only considered the appellants being young and the period they spent on remand. I'hat the appellants being easily rehabilitated and being uselul in this country by serving in dilferent capacitics was not considered. Section 5 of the Judicature Act, provides that "in the case of an appeal against a sentence and an order other than one fixed by law the accused person' may appeal to the Supreme Court against the sentence or order, on a matter of law not including the severity of the sentence." Obviously. the appellants werc complaining of severity of sentence in the guise ol lailure by Courr to consider mitigating factors. Be that as it may, it was clear to us according to the judgment of the Court of Appeal, that the leamed Justices misapplied the decision in the Rwabugande Moses case SCCA No 25 of 2014. This is because the Rwabugande Moses case was decided on 3.d March 2017, while the decision of the High Court was made on 6th December 20 I 6. This Court in Abelle Asuman Vs. Uganda, SCCA No. 60 of 2016 inter alia, held, "After the Rwabugande case decision this Court and the Courts below havc to follow the position of the law as stated therein. This is in accordance rvith the principle of precedent. We cite Black's Law Dictionary l8th Edn l2l4 A law ofprecedent is an adjudged case or decision ofcourt ofjustice, considered as furnishing a rule or authorilyfor the determinotion ofdn identical or similar case afterwards arising or of a similar queslion of law. It was lurther stated by this Court that a precedent has to be in existence for it to be followed. In the Abelle Asuman case (supra) the Court of Appeal decision was on 20th Dccember 2016. The Court of Appeal could not be bound to lbllow a decision of the 72 Supreme Court ol- 3'd march 201 7 about four months aller the de cision. This Court said, "Rwabugande Moses case (supra) would not bind Courts for cases decided before 3'd March 2017. We lind it usclul to poinl out that in the Rwabugande Moses casc (supra). this Court made it clear thal it was departing from its earlier dccisions in. Kizito Semakula V Uganda, SCCA No. 24 of 2001, Kabuye Senvewo V Uganda, SCCA No. 2 of 2002, Katende Ahamad V Uganda, SCCA No. 6 of 2004 and Bekenya Jeseph V Uganda, SCCA No. l7 of 2010 u{rich hcld that. "taking into account in consideration ol the timc spenl on remand does not nccessitatc a senlcncing Court to apply a mathematical formula." Belbre the decision of Rwabugande Moses (supra) this Court and the Courts below were following the law at it was in the previous decisions above quoted sincc that was the law then. In the Rwabugande Moses case (supra) this Court held, "that taking into account of the period spent on remand by a Court is necessarily arithmetical. This is becausc thc period is known with certainty and precision, consideration ol remand pgriosl should therefore neccssaril mean reducing or subtracting that period lrom the I'inal scntcnce. We carefully perused the rccord ofAppeal and found that the trial Judge/ Court, considered all the circumstances of the case and considered the period each appellant spent on remand beforc imposing the sentence which was in accordance with the law then. It follows therefore that the Court of Appeal faulting the trial Court was an error in law since the decision was before the dccision in Rwabugande case (supra) In accordance with rule 3l of this Court Rules we re-instate the sentence the trial Court imposed with variation in the following terms after taking into account the circumstances ofthe case as the trial Court did. Count l; Al is sentenced to 30 years' imprisonment. A2 is sentenced to 30 years' imprisonment. 43 is sentenced to 30 years' imprisonment. Count 2; Al is sentenced to 30 years' imprisonment ,{2 is sentenced to 30 years' imprisonment. A3 is sentenced to 30 years' imprisonment. The sentences to run concurrently from the date each appellant was convicted. 13 Since all the grounds havc failed the appeal is dismissed. Dated at Kampala this ..... t tL'l^1- aay or....o.Wh*. .....2023 MWONDHA JUSTICE OF THE SUPREME COURT PROF. TIBATEMWA-EKIRIKUBINZA JUSTICE OF THE SUPREME COURT TUHAISE JUSTICE OF THE SUPREMB COURT CHIBITA JUSTICE OF THE SUPREME COURT MUSOTA JUSTICE OF THE SUPREME COURT Su- ., k&T\^et(a yr*r-t) v.,i-l'\ lv'1L ja/u h [fx t J d&r"r.) &, d/l^'""& \ *t a-1)or^) fi^e l,/.t r qt^^^r--i- ,-. r"-zt^",-(- tb+' (b"<-^-' tllfrl"'wt'3 ,\clzo,>3, t4 W*alA,P.. I (^-j