Kwamusi Jacob v Uganda [2017] UGSC 33 (16 June 2017)

# Kwamusi Jacob v Uganda [2017] UGSC 33 (16 June 2017) [ Share this document on WhatsApp opens in new tab __](https://api.whatsapp.com/send?text=Kwamusi+Jacob+v+Uganda+%5B2017%5D+UGSC+33+%2816+June+2017%29+-+https%3A%2F%2Fulii.org%2Fen%2Fakn%2Fug%2Fjudgment%2Fugsc%2F2017%2F33%2Feng%402017-06-16) [ Share this document on X opens in new tab __](https://twitter.com/intent/tweet?text=Kwamusi+Jacob+v+Uganda+%5B2017%5D+UGSC+33+%2816+June+2017%29+-+https%3A%2F%2Fulii.org%2Fen%2Fakn%2Fug%2Fjudgment%2Fugsc%2F2017%2F33%2Feng%402017-06-16) [ Share this document on Facebook opens in new tab __](https://www.facebook.com/sharer/sharer.php?u=https://ulii.org/en/akn/ug/judgment/ugsc/2017/33/eng@2017-06-16) [ Share this document on LinkedIn opens in new tab __](https://www.linkedin.com/sharing/share-offsite/?url=https://ulii.org/en/akn/ug/judgment/ugsc/2017/33/eng@2017-06-16) [ Share this document by email __](mailto:?subject=Take%20a%20look%20at%20this%20document%20from%20ULII:%20Kwamusi%20Jacob%20v%20Uganda%20\[2017\]%20UGSC%2033%20%E2%80%A6&body=https://ulii.org/en/akn/ug/judgment/ugsc/2017/33/eng@2017-06-16) [ Download RTF (1.5 MB) ](/en/akn/ug/judgment/ugsc/2017/33/eng@2017-06-16/source) Toggle dropdown * [Download PDF](/en/akn/ug/judgment/ugsc/2017/33/eng@2017-06-16/source.pdf) Report a problem ##### Is there something wrong with this document? Problem category *Incorrect informationMissing informationNo PDF downloadDocument is emptyDocument is not accessible on my deviceOther What's the problem? * Your email address * CancelReport problem __ * Share * [ Download RTF (1.5 MB) ](/en/akn/ug/judgment/ugsc/2017/33/eng@2017-06-16/source) * [Download PDF](/en/akn/ug/judgment/ugsc/2017/33/eng@2017-06-16/source.pdf) * * * * * Report a problem __ ##### Kwamusi Jacob v Uganda [2017] UGSC 33 (16 June 2017) Copy citation * __Document detail * __Related documents * __Citations 1 / - Citation Kwamusi Jacob v Uganda [2017] UGSC 33 (16 June 2017) Copy Media Neutral Citation [2017] UGSC 33 Copy Court [Supreme Court of Uganda](/en/judgments/UGSC/) Judgment date 16 June 2017 Language English Summary ###### Flynote * Criminal law Read full summary __ ##### Ask AI Ask questions and understand this document faster using AI. __Ask AI * * * Skip to document content / \- - _A_ . . _I_ _-_ , I THE REPUBLIC OF UGANDA IN THE SUPREME COURT OF UGANDA AT KAMPALA CRIMINAL APPEAL NO.22 OF 2014. _[COR_ _AM_ _:__J._ _TUMWESI_ _G_ _YE,_ S. _A_ _R_ _AC_ _H_ _-AM_ _O_ _K_ _O,__A_ _.NSHI_ _MYE,_ F. _MW_ _O_ _N_ _DH_ _A_ _,_ _10_ _L .TIB_ _A_ _TE_ _MWA-EK_ _IRI_ _KU_ _BI_ _N_ _Z_ _A,__JSC_ 15 BETWEEN KWAMUSI **JACOB::****:****:****:****:::****:****:::::::****:::****::::::::****:****:::****::****::::::::****:****:::::****::****:****:****:****:****:::::::::::** APPELLANT VERSUS **U** **GANDA** RESPONDENT _[__A_ _ppeal from the decision of the Han_ _.__Rubby_ _A_ _weri Opio, Kenneth_ _Kakuru and_ _F_ _.__M_ _.S.__Engonda_ _Ntende,__JJ_ _A_ _, Crim_ _i_ _na_ _l_ _A_ _ppea_ _l_ _No.__0203_ _of_ 2009 _dated_ _24_ _th_ _October,__2014]_ _**J**_ _**U**_ _**DGM**_ _**E**_ _**N**_ _**T**_ _**OF TH**_ _**E**_ _**COURT**_ This is a second appeal from the decision of the High Court delivered by Lugayizi J on 9th July 2009 Vide _criminal case_ _No_ _13_ _4_ _3_ _of 2007._ **The background facts****:** The appellant was convicted by the High Court of Manslaughter on his own plea of guilty and sentenced to ten years imprisonment. He appealed against sentence to the Court of Appeal. The ground of appeal was that the time period he had spent on remand was not 1 , ; - _j_ _ 5 , considered by the High Court trial judge before passing the sentence. In resolving the above ground, the Court of Appeal _inter alia_ stated that: _Although the learned trial judge stated that he had taken into_ _10_ _account all mitigating and aggravating factors before passing the sentence,_ we _do not think this was sufficient to cover_ _**Article**_ _23(8) of[the Constitution](/akn/ug/act/statute/1995/constitution). _ _It is clear that the learned trial judge did not specifically state_ _that he had taken into account the period the appellant had_ 15 _spent on remand. We accordingly find that the learned trial_ _judge erred when he sentenced the appellant to ten years_ _imprisonment without taking into account the time he had spent_ _on remand as required under_ _**Article**_ 23(8) _**of[the Constitution](/akn/ug/act/statute/1995/constitution). **_ _The sentence is therefore illegal and a nullity and_ we _hereby set_ _20_ _it aside._ Having set aside the sentence of ten years, the Court of Appeal in exercise of its powers under _**Section**_**11** _**of the Judicature Act**_ imposed a fresh sentence of 12 years after taking into account the remand period. 25 It is this sentence that led the appellant to appeal to this Court on the following ground: 2 5 **Ground of appeal:** _**The Learned Justices of the Court of Appeal erred in law when**_ _**they enhanced the prison sentence of the appellant from ten years**_ _**to twelve years.**_ **Representation:** 10 At the hearing of this appeal, the appellant was represented by Counsel Andrew Ssebugwawo on state brief while the respondent was represented by Mrs Alice Komuhangi Khauka, Senior Principal State Attorney in the Directorate of Public Prosecutions. 15 Counsel for the appellant adopted written submissions he filed. The respondent's counsel on the other had made viva voce submissions in reply to the appellant's submissions. **A****ppellant****'****s submiss****i****ons:** Counsel for the appellant stated that _**Section**_**1****32** _**of the Trial on**_ _20_ _**In**_ _**d**_ _**ictments**_ _**A**_ _**ct, Sect**_ _**i**_ _**on**_**34** _of_ _**t**_ _**h**_ _**e**_ _**Criminal Procedure Code**_ _**A**_ _**ct**_ _**and Rule**_**3****2(****1****)**_**of the**_ _**C**_ _**ou**_ _**r**_ _**t of**_ _**A**_ _**ppeal Rule**_ _**s**_ regulate the exercise of criminal appellate jurisdiction of the Court of Appeal. That the above provisions of law give the Court of Appeal power to confirm or vary a sentence of a lower court but does not give court the 25 power to enhance sentence. Counsel argued that the Court of Appeal's sentence of twelve years amounted to enhancement of sentence. That such enhancement was irregular because there was no cross appeal from the 3 \-- , _.__A_ ~. - 5 Respondent. -In: support of this argument, he relied on the '- authorities of _Mugasa_ _V_ _s_ _Uga_ _nd_ _a_ _SCC_ _A_ _No 10 of 2010_ and _Busiku_ _V_ _s_ _U_ _ganda SCCA_ _N_ _o._ 33 _o_ _f 2_ _0_ _1_ _1_ _._ In further argument that the enhancement was irregular, counsel 10 stated that the practice of enhancing. sentences by courts has the effect. of, 'discouraging convicts from lodging appeals for fear that their sentences-may be enhanced. Counsel therefore prayed that the appeal be allowed and the enhanced sentence be set aside. 15 Respondent's submissions: Counsel for' the respondent submitted that there was no enhancement of' sentence made by the Court of Appeal. That enhancement. can only be done where there is a legal sentence and not on an illegal sentence like the present appeal. It was Counsel's 20 argument that the Court of Appeal having set aside the High Court sentence for failure' to consider the remand period, it imposed a fresh sentence. That on this premise, there was no enhancement made... In conclusion, the respondent prayed that the appeal be dismissed 25 and the sentence of the Court of Appeal be upheld. Analysis and Decision of Court. The central issue in this appeal is whether Court of Appeal on its own volition had powers to enhance sentence even where there is no 4 -. \- . ~- - 5 cross appeal. The appellant's contention is that the Court of Appeal erred in enhancing his sentence from ten years as meted out by the High Court to twelve years in absence of a cross appeal from the respondent. The Court of Appeal held as follows: _"__Taking all the above into account and the fact that the_ _10_ _A_ _ppellant had been o_ _n_ _remand for a period_ of _one and half_ _years before conviction_ _,_ we _t_ _hink that a sentence of twelve_ _y_ _ea_ _rs w_ _ould meet the_ _e_ _nd_ _s_ of _t_ _he justice._ _W_ _e accordingly_ _s_ _et_ _asid_ _e_ _t_ _he_ _s_ _entence impo_ _s_ _ed b_ _y_ _the trial_ _c_ _ourt and su_ _bst_ _itut_ _e_ it _with_ _a_ _s_ _entence_ of _twelve_ _y_ _ears_ 15 _imp_ _r_ _isonment_ to _r_ _un_ _fr_ _o_ _m t_ _h_ _e_ _date_ of _c_ _onvi_ _c_ _t_ _i_ _on_ _"._ The appellant, in support of his argument that the Court of Appeal's sentence amounted to enhancement of sentence, relied on the authorities of _M_ _uga_ _s_ _a_ _vs_ _.__Ugan_ _d_ _a SC_ _C_ _A_ _No_ _.__1_ 0 of _2_ _010 and_ _Busiku_ _vs. Ugan_ _da SC_ _CA N_ _o_ 33 of _2_ _0_ _11._ 20 In _M_ _u_ _g_ _asa_ _V_ _s_ _Ug_ _an_ _da_(supra), the Court of Appeal enhanced the sentence of the appellant from 17 years to 25years. On appeal against enhancement, this Court was of the view that much as the Court of Appeal had the power to vary a sentence according to _S_ _ect_ _i_ _on_ 132(1) _(__d)_ of _th_ _e Tria_ _l on In_ _d_ _ictment_ _A_ _c_ _t,_ proper 25 sentencing procedure had to be followed when varying sentences imposed by lower courts. In Busiku vs. Uganda (supra), the Appellant's sentence of 12 years was enhanced to 20 years. The appellant challenged the enhancement in the Supreme Court. The Court in allowing the 5 , 5 appeal relied on its decision in _weitire Asanisio_ _vs. Uganda_ _SCCA_ _No._ 11 _of 2010 and_ _Mugasa_ _vs. Uganda_(supra) and held that no universal standard could be set on the procedure appellate courts should follow when varying a sentence imposed by the lower courts. The Court however, maintained the view in Mugasa vs. Uganda that the Court ought to give the appellant advance notice before a sentence is enhanced to be afforded a hearing on the new sentence, in the interest of justice. We note that much as the above authorities are quite authoritative 15 on the issue of enhancement of a sentence by an appellate court, they are irrelevant to the issue pertaining to the present appeal. The authorities are distinguishable from the circumstances and facts presented in the appeal before us. 20 In the present appeal, the Court of Appeal found that the High Court did not take into account the time spent on remand which is a constitutional imperative when sentencing. Article 23 (8) of the Constitution provides: _"Where a_ _person is_ _convicted and sentenced to a term of_ _25_ _imprisonment for an offence, any period he or she spends in_ _lawful custody in respect of the offence before the_ _completion of his or her trial_ __shall__ _be taken into account in_ _imposing the term of imprisonment._(Emphasis ours). 6 ". 5 The Court of Appeal having found that the High Court judge failed to take into account the period of one and a half years the appellant spent on remand, declared the sentence illegal. This court has recently held in _R_ _w_ _abuga_ _nd_ _e_ _Vs U_ _ganda SCC_ _A_ _No._ 25 _of_ _2014_ _,_ that, _a sentence arrived at without taking into considerat_ _i_ _on the_ _10_ _period spent on remand is illegal for failure to comply with a_ _mandatory constitutional provision._ We note that the effect of declaring a sentence illegal is that no sentence stands thereafter. The appellate court can thus invoke its sentencing powers as a court of original jurisdiction to impose a 5 new sentence. This is what the Court of Appeal did. In exercise of its powers given under _s_ _ec_ _ti_ _on_ 11 _of the Judicatu_ _re A_ _c_ _t_ and after taking into account the period the appellant spent on remand, imposed a new sentence of 12 years - which is appealed against. What the appellate court would have done was to either remit the 20 case to the High Court so that the sentencing procedure is reopened or the Court of Appeal would have invoked its powers under the _Ju_ _dicature Act._ However before invoking the said powers, natural justice demands that before an appellate Court imposes a sentence which is even 25 harsher than the one being set aside, it has to give the appellant an opportunity to be heard on the proposal to impose a higher sentence. The Court of Appeal having failed to observe this fundamental requirement of [the Constitution](/akn/ug/act/statute/1995/constitution), the sentence it imposed was a nullity. The Court of Appeal with due respect, set 7 \- 5 aside an illegal sentence of the High Court and substituted it with another illegal one. For that reason, the sentence cannot be allowed to stand. We therefore allow the appeal and set aside the sentence of 12 years imposed by the Court of Appeal. 10 Having done so, we note that on 7/7/2009 when the appellant was sentenced by the High Court, the prosecution told court that the appellant had been on remand of 1 72 years. A copy of the charge sheet on the file is dated 2pt November, 2007. The appellant has been in custody for a period slightly beyond 9 15 years. Considering that he could have benefited from earnings of remission in prison, he could have completed his original sentence of 10 years and released. In the circumstances, we do not find it appropriate to send the file back to the High Court for consideration of the period he was on remand before resentencing. We therefore order the immediate release of the appellant if he has not already been released. 25 **Dated at Kampala this 16****th****day of June 2017** 8 "1 , _.__r_ _'_ . . ' . 5 10 **........................................................................** STELLA ARACH-AMOKO JUSTICE OF THE SUPREME COURT. 5 AUGUSTIN E NSHIIMYE JUSTICE OF THE SUPREME COURT. 20 FAITH MWONDHA 25 JUSTICE OF THE SUPREME COURT . ................... . LILLIAN TIBATEMWA-EKIRIKUBINZA 30 JUSTICE OF THE SUPREME COURT. 9 #### __Related documents #### More documents like this one ▲ To the top >