Muganga Richard and Others v Uganda (Criminal Appeal No. 44 and 54 of 2020) [2026] UGSC 25 (10 June 2026)

THE REPUBLIC OF UGANDA IN THE SUPREME COURT OF UGANDA AT KAMPALA Coram: Prof. Tibatemwa-Ekiikubinza, Tuhaise, Chibita, Musota €+ Bamugemereire, llSC CRIMINAL APPEAL NOS.44 & 54 OF 2O2O 1. MUGANGA RTCHARD (A1) 2. KALULE TADEO (As) 3. RUIAGA DONOSTO (46) APPELLANTS VERSUS UGANDA RESPONDENT (Appenl from tle decision of the Court of Appenl of Ugnndn in Crinrinal Appeal No. 153 of 2012 before Kakuru, Egonda-N tende and Mndrnnn, lJA, delitered ott 19th lurrc, 2020). IUDGMENT OF THE COURT The appellants were respectively indicted with, and convicted of, the offence of murder contrary to sections 188 and 189 of the Penal Code Act, Cap 120 (now sections 171. and 172 respectively, of the Penal Code Act, Cap 128, 2023 revised edition). This is their second appeal following a partially successful appeal against conviction and sentence to the Court of Appeal. Background 1 On 19th June 2009, Kasozi Gerald (deceased) was killed in his home at Kanogozi Village, Maddu Sub County, Gomba District (formerly Mpigi). The deceased had been violently attacked in the night. The post-mortem report indicated that he died of internal and external bleeding, due to deep head injuries and fractured bones, following cut wounds. A number of people were arrested and indicted in court in connection with the killing. These were Muganga Richard (A1, brother to A3), Bwengesa Paul (A2, deceased's father), Nakiganda Annet (A3, deceased's sister - in - law), Nassimbwa Barbra (A4, wife of A2), Kalule Tadeo (A5, nephew to .A4 and casual worker in A2's household) and Rujaga Donoziyo (A6, resident of Kanogozi Village). They all pleaded not guilty to the murder charges. The evidence showed that, in 2007, the deceased bought land with a water source from A2, his father, and fenced it off. The act of fencing off the land enraged his father, as a result of which, tensions developed between the two. Later, Andrew Kamoga, aged 2 years, and son of ,{2 and A4, died in 2008; and Edward Nsamba, also a son of ,{2 and husband of A3, died in March 2009. A2 blamed the deceased for killing his (A2) two sons through witchcraft. A2 told several people including his daughters that he would kill the deceased in revenge. A2, A3 and A4 then masterminded a plan to kill the deceased, including hiring assailants to do the job. On 18th June, 2009 all the appellants were seen seated together in A2's plantation, discussing. During the night of the same day, into the morning o1 1lttt June 2009, the house of the deceased was broken into and he was killed. The 2 attackers had torches which they kept flashing during the attack. With the aid of the light from the torches, the deceased's wife and children recognized three of the assailants as Rujaga Donosio (,46), Kalule Tadeo (A5) and Muganga Richard (A1). The six accused persons were eventually indicted for the murder of the deceased, and were tried at High Court Mpigi, in Criminal Cnse No. "106 of 2010. On 1st June 2012, Nahamya J found all the 6 accused Persons guilty of murder, convicted each of them, and sentenced each of them to 60 years' imprisonment. The six convicts appealed to the Court of Appeal, against the conviction and the harsh and excessive sentence. However, A2 died in January 2019 before the appeal was heard. The appeal thus abated as against him, but proceeded against the five co- appellants. The Court of Appeal upheld the conviction of murder against A1, ,A.3, 44, A5 and ,{6. The same court however, allowed the appeal against the sentences. It found the sentences of 60 years' imprisonment against each of the five appellants to be harsh. It accordingly reduced the sentences of A3 and .A4 to 20 years' imprisonment, and those of A.1, A5 and ,{6 to 30 years' imprisonment. The court took into account, and deducted, the three years each of the convicts had spent on remand, bringing the respective sentences to imprisonment for 17 years (for A3 and A4) and27 years (for A1, A5 and ,{6), to be served from 1't June 2012 the date of conviction. 41, ,A5 and ,{6 were dissatisfied with the sentences imposed against them by the learned Justices of Appeal, hence their appeal to this Court. 3 The 2nd appellant (Kalule Tadeo) individually filed Criminal Appeal No. 44 of 2020 in this Court. Later, all the three appellants filed a joint appeal, Criminal Appenl No. 54 of 2020, in this Court. The ioint memorandum of appeal that was filed regarding both appeals had the following grounds of appeal:- 1. That the learned Justices of the Appeal erred in law in failing to draw their mind to the fact that the learned trial |udge sentenced the appellants basing on a wrong principle in law which rendered the sentence illegal. 2. That the learned fustices of Appeal erred in Iaw in sentencing the appellants to differing sentence(s) without any justification and thereby offended the principle of uniformity and consistence in sentencing. Representation At the hearing of the appeal, Mr. Andrew Ssebugwawo appeared for the Appellants. Mr. Wanamama Isaiah, Senior State Attorney, appeared for the Respondent. Submissions on Ground L It was submitted for the appellants that the learned Justices of Appeal erred when they omitted to address their minds to the fact that the learned trial Judge convicted the appellants basing on a wrong principle. The appellants contend that the learned trial Judge misdirected herself on the law by taking into consideration the appellants' lack of remorse as an aggravating factor during sentencing. 4 Learned Counsel for appellants relied on the cases of Kakooza Livingstone, Supreme Court Criminal Appeal No. 1/1993; Mattaka vs Republic [1971] EA 495 at page 512; Musozi Stephen vs Uganda, Court of Appeal Criminal Appeal No.93/2077; and Busiku Thomas vs Uganda, Supreme Court Criminal Appeal No. 33/2011 to supPort his submission that, it is now a well settled principle consistently followed by this Court and the Court of Appeal that, when sentencing, the trial Judge ought not to impute that a convicted person is not repentant or lacked remorse. Counsel contended that this is because a person who has maintained his innocence throughout the whole trial cannot be expected to be repentan! that, if this was the case, then the right to appeal would be fettered and rendered nugatory. Counsel argued that, it therefore follows that, when a trial court sentences a convict on account of him,/her not being remorseful, then the trial Judge is said to have acted on a wrong principle by taking lack of remorse as an aggravating factor in sentencing the convict, and the ensuing/subsequent sentence is null and void, and must be quashed on appeal. In addition, it was submitted for the appellant that, in liSht of the authorities cited above, the act of the trial Judge constitutes a material irregularity, and directly affects the legality of sentence. Counsel invited this Court to invoke its inherent powers, set aside the illegal sentences, and substifute the same with lawful ones. In reply, regarding ground 1, it was submitted for the respondent that the learned Justices of Appeal did not consider the trial Judge's remark 5 during sentencing that the appellants were unrepentant, probably because, as is apparent on the record, such a remark was not a subject of a complaint by the appellant as it is now before this Court. The respondent's counsel submitted that, the foregoing notwithstanding, the misdirection of the trial Judge imputing lack of remorse from the accused persons before sentencing, and the failure of the learned Justices of Appeal to direct their minds on the matter, did not cause a miscarriage of justice, because there were many other aggravating factors that justified the trial Judge's imposition of the sentence of 60 years' imprisonment against each of the appellants. Counsel contended for the respondent that, despite the gravity of the offence, the learned Justices of Appeal exercised their discretion under section 11 of the Judicature Act to review the sentence, found reason to interfere with it, and reduced it from 60 years' imprisonment for all the accused persons, to 30 years' imprisonment for the three appellants herein. Submissions on Ground 2 It was argued for the appellants that the learned Justices of Appeal erred in law when they failed to adhere to, and/or comply with, the principle of uniformity and consistency in sentencin g, first, among the co-appellants themselves, and secondly, by the Justices of Appeal not following the case precedents. Counsel submitted that the Court of Appeal, after setting aside the trial Judge's sentence of 60 years' imprisonment against each of the appellants before it, gave varying sentences to the appellants without 6 giving any justification for the disparity of the sentences. Counsel contended that it is not clear on what basis A3 and A4, who are not part of the instant appeal, were each sentenced to 20 years' imprisonment, while the appellants in the instant appeal (Al, A5 and .46) were each sentenced to 30 years' imprisonment, which is ten years in excess of the sentence imposed against their co-appellants at the Court of Appeal. It was Counsel's submission that, although the Court of Appeal had alluded, at page 16 of the judgment, to have taken into account the principle of uniformity, this was just in a passing, as it did not apply it practically when sentencing the appellants. Counsel also submitted for the appellants that the Iearned Justices of Appeal failed to follow case law, including case precedents they themselves cited. He stated that the authorities they cited were those of Kamya Abdallah & 4 others vs Uganda, Supreme Court Criminal Appeal No. 24/2015 where the Supreme Court reduced the sentence from 30 years' imprisonment to 18 years' imprisonmen! Omusenu Sande vs Uganda, Court of Appeal Criminal Appeal No. 029/2001 where the Court of Appeal reduced the sentence from 30 years' imprisonment to 20 years' imprisonment; and Wodaba Moses vs Uganda, Court of Appeal Criminal Appeal No. 758/20L4 where the appellant had initially been sentenced to 39 years' imprisonment, but, on appeal, the sentence against him was reduced to 23 years' imprisonment. Counsel submitted that had the learned Justices of Appeal strictly followed the authorities they themselves cited in their judgement as 7 their guide, they would have found the sentences of 30 years' imprisonment for each of the three appellants in the instant appeal to have been out of range and not consistent with the principle of uniformity. Counsel relied on the cases of Kamya Abdalla & 4 Others (supra) where the appellants' sentence of 40 years' imprisonment for murder, was, on appeal to the Court of Appeal, reduced to 30 years' imprisonment, and, on further appeal to this Court, was reduced to 18 years' imprisonment. He also relied on Rwabugande Moses vs Uganda, Supreme Court Criminal Appeal No. 25/20L4, where the Court of Appeal confirmed the High Court conviction of murder and sentence of 35 years' imprisonment against the appellant, but, on appeal to this Court, the sentence was reduced to 22 years' imprisonment. Counsel prayed that, in absence of any justification as to how disparity in sentence was arrived a! and, on the persuasive authorities cited, the appellants' sentences be put on the same scale as that of their co- appellants at the Court of Appeal (A3 and A4) who were each sentenced to 20 years' imprisonment. In reply, regarding ground 2, learned Counsel for the respondent submitted that the learned Justices of Appeal imposed a legal sentence of 30 and 20 years' imprisonment respectively for murder, after taking into consideration the facts of the case, and the different roles played by the accused persons who were charged with having a common intention to murder the deceased. Counsel contended that both 8 sentences fall within the range prescribed by law, and are consistent with sentences previously dispensed by this Court. Counsel referred this Court to page 49 of the judgment, lines 16 to 20, and submitted that the learned Justices of Appeal justified the different sentences by distinguishing between those who formed a common intention by holding meetings and discussions on who would be hired for the mission but did not go to the scene of crime to participate physically, from those who were placed at the scene of crime and carried out the actual heinous gruesome murder. He contended that those who were placed at the scene of crime and were proved to have carried out the murder were each sentenced to 30 years' imprisonment, while those who formed a common intention but did not participate in the actual killing at the scene of crime were each sentenced to 20 years' imprisonment. Counsel relied on the cases of Aharikundira Yustina vs Uganda, Supreme Court Criminal Appeal No. O027/2075 where this Court substituted the death sentence with 30 years' imprisonment. Counsel further submitted that sentencing is not a mechanical process, but a matter of judicial discretion, and that therefore, perfect uniformity is hardly possible. He cited the case of Muhoozi & Another vs Uganda, Supreme Court Criminal Appeal No.29/20'1.4, where the sentence of 30 years' imprisonment was considered appropriate for murder and was upheld, based on the severity of the offence and other factors considered by the court. 9 Counsel prayed that the sentences imposed against each of the appellants by the Court of Appeal be upheld. Consideration of the Appeal This Court's jurisdiction, as a second appellate court, is limited to considering questions of law, or fact, 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 (referred to as "the Rules of this Court" in this judgment), and in Kifamunte Henry vs Uganda, Supreme Court Criminal Appeal No. 10[L997. Thus, 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: That the learned |ustices of the Appeal erred in law in failing to draw their mind to the fact that the learned trial |udge sentenced the appellants basing on a wrong principle in law which rendered the sentence illegal. It is the appellant's contention that the learned trial Judge sentenced the appellants based on their lack of remorse, which rendered the sentence illegal; and that the learned Justices of Appeal did not comment on it. The respondent, on the other hand, argues that, whereas the learned trial Judge considered the appellants' lack of remorse, there were other aggravating factors that warranted the 10 sentence of 60 years' imprisonment imPosed against each of them; that, in addition, it was not brought to the attention of the first appellate court for consideration; and that no miscarriage of justice was occasioned. The general rule is that when sentencing an accused person(s), their lack of remorse should not be treated as an aggravating factor. This Court, in Busiku Thomas vs Uganda, Supreme Court Criminal Apeal No. 33/2011, found that:- " ...the nrere fact that a trial court or euen the Court of Appeal considered tnck of remorsefulness or penitence, per se, wlrcn cotrsidering the Sentence to impose on a persofi toho has been contticted of a crine, does not necessarily zonrrnnt the quashing or rettersing of the sentence, unless tlrcre hns been a fnilure or suhstantial miscarriage of justice. The Court is eoen more inclined to decline to set nside or unry the sentence uthere there nre other legitimate aggrnanting factors thnt the ludge or the Court of Appeal took ittto accoutrt. ....." The record shows at pages 5 and 6 of the sentencing submissions (pages 340 and 341 of the Record of Appeal), that the learned trial Judge stated:- 11 "l haue henrrl tle Principal State Attorney's suhmissions in respect of aggrnoating matters... The offence of murder is a cnpitnl offence for tohich the mnxinrum penalty is denth.... I lmtte taken into account the mitigatfug factors as subnritted by the Defence Counsel ...' I nm cognizant of ttrc principles of xntencing Tlrc idenl one in this cnse is not refornmtiort or anythittg tohich hold yott tuith kids' glotres... Altltotr h remorsefit lness is rrot n facto r nonetheless, I see none o it in nll o ou. Tlrc pwrislmrcnt nrust cortufle surate toith your actions. Society toill be nruch better off if you nre put away...." (underlined for emphasis). It is clear from the foregoing excerPt, that whereas the learned trial Judge warned herself that the remorsefulness is not a factor in sentencing, she nonetheless went ahead to point out that there was no remorse in the appellants. She then considered other aggravating circumstances against the appellants, as Presented by the Principal State Attorney, and then sentenced each of them to 60 years' imprisonment. The learned Principal State Attorney's presentation or submissions regarding the aggravating factors, were, as extracted from page 336 of the Record of Appeal, as follows:- "The offence of murder is a capital olfence which led to loss of life...The mode of execution of murder...the body of Kasozi had sezteral ileep cut iniuies...his assailants were determined to kill him.*They achieoeil that goal." When the appeal against the High Court judgment was filed at Court of Appeal, the appellants did not exPress grievance over the consideration of their lack of remorse by the learned trial Judge in their grounds of appeal. Neither did the learned Justices of Appeal consider it in their judgment. 72 However, through ground 1 of the instant appeal, the appellants are faulting the learned Justices of Appeal for not considering a matter that was not brought to their attention. The appellants did not seek leave of this Court to argue a new ground of appeal, as is required under Rule 70 (1) (a) of the Rules of this Court. This Court is enjoined to only entertain matters that were before the first appellate court. We are aware that the Court of Appeal as the first appellate court is duty bound to consider the evidence before the lower court in its entirety and come up with its own conclusion. The record of appeal in the instant circumstances, however, indicates tha! at the Court of Appeal, the appellants appealed against conviction and sentence. It is only Ground 5 that challenged the sentence imposed against the appellants by the learned trial Judge, and it stated:- "5. Tlrc sentence against tlrc appellants runs lmrsh and excessitte in tlrc circtnnstnnces." The Court of Appeal, in considering the extracted Ground 5 of appeal, stated at page 50 of the Record of Appeal (page 16 of the iudgment), that:- " Mindful of tlrc aboue principles of lnzo and considering the decisions of this Court nnd tle Supreme Court on sentencing, we fnd thnt (sic) sentence of 60 (rtears ) imprisonment for ench of tlrc a llnnt runs lnrslr ntul tnnrti stl excessitte in the cirarnrstottces of this cax 13 ludse.We nou , oroceed to ittpo se n sentence of our ottttt thnt ute considll to be nrore ntrpropriate." (underlined for emphasis). It is apparent from the foregoing excerPt of their judgment, or even anywhere on the record, that the Court of Appeal did not comment, or take into account the appellants' lack of remorse when sentencing them. This is understandably so, since the matter was not raised by the appellants in their memorandum of appeal to that court. The Court of Appeal did not uphold the sentence of the learned trial Judge either. They made a finding that it was harsh and excessive in the circumstances, in addition to stating that there is need to have uniformity and consistency in sentencing. They then accordingly set it aside, and, after invoking section 11 of the Judicature Act, proceeded to impose a sentence which they considered to be more aPproPriate. In pursuit of this, they considered the aggravating factors and the mitigating factors. The aggravating factors they considered were that an innocent man was murdered in a horrific, heinous and barbaric manner. Regarding the three appellants in the instant appeal, they accordingly reduced the 60 years' term of imprisonment imposed by the learned trial Judge against each of them to 30 years' imprisonment. They further deducted the period of 3 years spent by the said 74 Tlrcre is need to hnoe uni.formity and consistenry in sentencitrg' We therefore haue to take into cottsideration tlrc sentences this Court nnd the Suprenre Court haae imposed on offenders in similar circumstances, Accordingllt, we set nside tlrc sentence imposed blt the lenrned trial appellants on remand, bringing the sentence to 27 years' imprisonment. The record, as highlighted above, shows that when sentencing the appellants, the learned trial Judge addressed the learned Principal State Attorney's submissions regarding aggravating factors, notably that the offence of murder is a capital offence for which the maximum penalty is death, and also took into account the mitigating factors as submitted by the Defence Counsel. Thus, based on the foregoing findings and authorities, we find no reason to fault the learned Justices of Appeal for not addressing their minds to the fact that the learned trial Judge sentenced the appellants based on a wrong principle in law. Ground one of the appeal therefore fails. Ground 2: That the learned |ustices of Appeal erred in law in sentencing the appellants to differing sentence(s) without any justification and thereby offended the principle of uniformity and consistence in sentencing. The appellant's contention in Ground 2 is that the learned Justices of Appeal failed to adhere to, and/or comply with, the principle of uniformity and consistency in sentencing, and that they did not follow the precedents. It is the appellants' argument that the learned Justices of Appeal imposed varying sentences against them without justification. On the other hand, the respondent contends that the respective sentences 15 imposed against the appellants were justified, since they were arrived at by the learned Justices of Appeal after a comprehensive consideration of the roles played by each appellant. The respondent argues that the reason for varying the sentences is that some appellants were placed at the scene while others, were not, though they participated in planning the murder; that is, that those who were placed at the scene got higher sentences than those who were not. The appellants' prayer to this Court is that the sentence of imprisonment for 30 years imposed against each of them by the Court of Appeal be reduced to 20 years' imprisonment, as was the case for their co-appellants at the Court of Appeal. The instant ground of appeal relates to severity of the sentence. Section 5 (3) of the Judicature Act prohibits appeals against severity of sentence. It provides that:- "ln tle case of an appeal agninst o sentence and an order otlrcr tlnn one fxed by lau, the accused perso may appeal to the Supreme Court against the sentence or order, orx a mntter of laru, not inchtding the setteritrl of the sentence." The foregoing legal provision was recently invoked by this Court in Ssenyonga vs Uganda, Supreme Court Criminal Appeal No. 82 of 2020 (I202sl ucsc 18). In Kiwalabye Bernard vs Uganda, Supreme Court Criminal Appeal No. 143/2001, this Court decided that an appellate court is not to interfere with a sentence imposed by a trial court which has exercised 16 its discretion on sentences, unless the exercise of the discretion is such that the trial court ignores to consider an important matter or circumstances which ought to be considered when passing the sentence. Thus, based on the legal provisions and principles expounded above, this Court can only interfere with the sentence of the lower court if the lower court applied a wrong principle or does not consider an important factor while sentencing. The record shows that, while addressing grounds 1,, 2, 3 and 4 of the appeal before them, regarding the appellants' conviction, the learned Justices of Appeal stated as follows:- "We haae no renson to fnult tle learned trinl ludge lor fniling tlut the releoant confession uas tnte and for placing reliance on it. Tlrc snid corrfessiotr i nwlicated all the npDellnttts in tlrc nutrder of tle decensed. The 2"a, Jrd nyfl lth n plrellnnts werc Intp Iicnted ns tlrcrt lnd cotrnttott intentiorr to nntrdcr tlte deceased epert thouslt tlrcu net)er pltltsicallv 11 nrticipn ted at tlrc scene of crime. " (underlined for emphasis). In their re-evaluation of the evidence before the trial court, the learned Justices of Appeal found that whereas the appellants were all convicted of the murder of Kasozi Gerald, A2, A3 and ,A4 were not at the scene of crime when the murder was being committed; that only ,{1, A5 and ,{6 (appellants in the instant appeal) were placed at the scene of crime; and that 42, A3 and A4 participated in meetings and therefore had the common intention to kill the deceased. t7 The learned Justices of Appeal then, as shown on Pages 46 to 49 of the Record of Appeal (pages 12 to 15 of the iudgment), considered the doctrine of common intention. At page 48 (page 14 of the judgment), they stated:- "The prosecution ettidence established tlnt although the 2nd,3rd and 4th nppellants neuer participated physically itt the murder, they held meetings at uhich there ruere rliscussions on loto to lire people to murder tle deceased. We fnd tlmt, the 2"a, Jra and 4th appellant had common intention to murder the deceased eoen though they netter physically participateil at the scene of cime. Hnuing renppraised the ettidence, ule are cottt irtced tlmt tlre awellnnts pnrticipa ted in tlrc murder of tlrc deceased iLr tlis essg. We nre sati sfed thnt the prosecution placed the -lst,sth and 6tl' appellnnts at the scene of crinrc as tltc deceased's nsstilnnts. We nre nlso sntis fie d tltat the 2ild,3rt1 nnd 4tt, nppellants fornred a co mnrcn intantiotr tuillt tlwtt to rnurder tlp deceased " (underlined for emphasis). The learned Justices of Appeal, therefore, dwelt greatly on the doctrine of common intention, as spelt out in the Penal Code Act Cap 120 (now 128), section 20 of which states;- "Wrcn htto or more persons form a comntott intentiort to prosecute an unlawful purpose in conjunctiort zoith one nnother, nnd in the prosecution of that purpose an offence is connnitted of such a nature that 18 its commissiort roas a probable consequence of the proseantion of that purpose, each of tlrcm is deemed to lnae committeil tlrc offence." The foregoing principle of common intention was correctly invoked and applied by the learned Justices of Appeal, as reflected on page 46 of the Record of Appeal (page 12 of the judgment), to iustify the conviction of A2, A3 and A4, who, though not Present at the scene of crime, participated in planning the murder of Kasozi Gerald. They were therefore, under the doctrine of common intention, as guilty of the murder as the appellants in this appeal who actually executed it. The learned Justices of Appeal, in addition, relied on the case decision in Charles Komiswa vs Uganda [19791 HCB 86 in discussing and applying the doctrine of common intention. In that case, the court stated:- " ... tolrcre seaeral persons nre proaed to haae combined togethcr from the same illegal purposes, nny act by one of thenr in pursuance of the original concrete plan and witlr reference to conrmon object irt tlrc contemplatiotr of the lato, is nn act of the ruhob, each pnrty is tle agent of the otlurs in cnrrying out tle object of tlre conspiracy he renders linrself o orincionl o.f.fender." (underlined for emphasis). We now proceed to consider the appellant's contention that the learned Justices of Appeal failed to adhere to, and/or comply with, the principle of uniformity and consistency in sentencing by imposing varying sentences against them without justification, and by not following the precedents; as against the respondent's response that the 19 20 sentences were justified in that the appellant's who were placed at the scene got higher sentences than those who were not. Section 20 of the Penal Code Act, as extracted above, deems all participants who form a cofiunon intention to Prosecute an unlawful purpose in conjunction with one another, as equally guilty of an offence. This, in our opinion, is for purposes of convicting such Persons. The actual punishment handed down to Persons convicted together under the doctrine of common intention is a matter of discretion, as is evident from various case decisions, in the local as well as foreign jurisdictions. Though the general principle is that of equal liability for the offense, the specific sentence for an individual rriay v ary , based on a judge's assessment of various factors. These factors include, but are not restricted to, the degree of culpabiliLy, for instance, a Person who used a deadly weapon might receive a more severe sentence than an accomplice who only used a stick, even if both were found guilty of the same serious murder charge; role and participation, for instance, an instigator or a central figure, like a ringleader who controlled the manner of the offense might be viewed differentty from someone with a less active, but still complici! role; mens rea (criminal intent), for instance, while all participants must have shared the basic common intention for the charge to stick, the degree of their foresight or specific intent can be a factor at the sentencing stage; individual circumstances, where, for instance, standard sentencing considerations apply, such as an offender's criminal history, age,, remorse, or any substance abuse issues, which might influence the type of sentence and its length; and plea bargaining/evidence, resulting from practical legal factors, such as one co-accused entering a plea bargain or a lack of evidence for a particular individual's involvement, leading to a lesser charge or even an acquittal. In short, the law aims for the sentence to reflect the "gravamen" (seriousness) of each individual's conduct, even within a corunon intention crime. In Uganda, this principle is reflected in paragraph 7 of the Constitution (Sentencing Guidelines for Courts of Judicature) Practice Directions, 2013 (hereinafter referred to as "the Sentencing Guidelines"), which requires judges to consider the specific circumstances of each offender individually when sentencing co- accused persons or multiple offenders. We have considered the trend of how, after the passing of the Constitution (Sentencing Guidelines for Courts of Judicature) Practice Directions, 2013, and after the mandatory death penalty was declared unconstitutional in Attorney General vs Suzan Kigula & 417 Others, Supreme Court Constitutional Appeal No. 03/2006 [2009] UGSC 6, this Court, or other courts, have issued sentences against multiple offenders convicted after a finding that they had common intention in the commission of the offence of murder. In Sekitoleko & 2 Others vs Uganda, Supreme Court Criminal Appeal No. 33 of 201,412074 UGSC 7 all the three appellants participated in the plan to kill the deceased, but the main actors were the 1st and the 3 appellants. The two hired the services of the 2nd appellant. Although it was the brother of the 1't appellant who eventually hit the deceased with 2t the deadly weapon, the 2'd appellant remained implicated because it was his hammer which was used to kill the deceased in his presence. This Court accordingly found that all the appellants had comrnon intention in the commission of the murder of the deceased, and their respective death sentences were upheld. In Sebuwufu and 3 Others vs Uganda, Criminal Appeal No. 7l of 2021 [2023] UGSC 50, the adduced evidence was that all the appellants set out to complete a pre - planned task with a strategy to rePort a false allegation against the deceased, in addition to keeping her under surveillance, kidnapping her, and keeping her at an ungazetted place while torturing her with demands to produce the 1d Appellant's money or otherwise be killed. This Court agreed with the concurrent findings of the High Court and the Court of Appeal, that the 1't Appellant, who had raised a defence of nlibi, was nevertheless guilty of the murder of the deceased, together with the other Appellants under the doctrine of common intention. This Court found no reason to interfere with the Court of Appeal's respective sentences of 19 years' imprisonment for each Appellant. This was after considering the circumstances of each of the Appellants as well as their respective precedents and individual periods of remand. In the High Court decision in Uganda vs Ambayo Charles and Abiliga Alfred HCCC Nos. 11,2,015 & 78/2018 (Adjumani), which we find persuasive in the circumstances, the High Court imposed a lesser sentence against a co - accused, Abiriga Charles, a reason for the variation was given, that, in the commission of the offence of murder, he was found to have been more at the accessory rather than the direct perpetration level. 22 Thus, in our considered opinion, while a sentencing court/judge has the discretion to impose varying sentences to co - accused persons convicted under the doctrine of common intention, it is only prudent that the sentencing court explains or gives reasons for the variance of its sentences. This could be through outlining the aggravating and the mitigating factors for each individual convicts, and/or clearly indicating why varying sentences were imposed against persons convicted of committing the same offence with common intention. Regarding the instant appeal, the record shows, at Pages 50 and 51 of the Record of Appeal (pages 16 and 17 of the Court of Appeal judgment) that, having found the sentence of 60 years' imprisonment imposed against the appellants to be harsh and manifestly excessive in the circumstances of the case, the learned Justices of Appeal set it aside' After that, they made an observation that there is need to have uniformity and consistency in sentencing, and stated that they took into consideration the sentences the Court of Appeal and the Supreme Court have imposed on offenders in similar circumstances. They then exercised their powers under section 11 of the Judicature Act, and, after considering the mitigating and aggravating factors, and the applicable laws, they sentenced each of the appellants in this appeal (A1, A5 and ,{6 at trial) to 30 years' imprisonment. In the same circumstances, they sentenced each of their co-appellants at the Court of Appeal (A3 and A4 at trial), who are not party to the instant appeal, to 20 years' imprisonment. They then deducted the 3 years each of the mentioned appellants had spent on pre - trial detention, and accordingly ordered that each of the appellants in the instant appeal serves a sentence of 27 23 years' imprisonment, while their co-appellants who are not Party to this appeal were to serve a sentence of 17 years' imprisonment. The record shows, at page 51 (page 17 of the iudgment), that the aggravating factors the Court of Appeal considered before sentencing the appellants afresh, were, in aPParent agreement with the learned trial Judge, that an innocent family man with a wife and children was murdered in a horrific, heinous and barbaric manner. The learned Justices of Appeal then, in addition, considered mitigating factors, as reflected on page 51 of the Record of Appeal (page 17 of their judgment), that the appellants were all first offenders; that the 1't appellant was a family man with two wives and four children; that the 3'd appellant was a widow with seven children to take care of and was relatively young aged 38 years at the time of the commission of the offencei that the 4th appellant had five children to take care of and was relatively young aged 36 years at the time of the commission of the offence; that the 5th appellant was a family man with a wife and three children, and relatively young aged 33 years at the time of the commission of the offence; and that the 6th aPPellant was relatively young aged 25 years at the time of the commission of the offence. As reflected on the record, the aggravating factors considered by the Court of Appeal apparently applied equally to all the appellants before that court. The mitigating factors, except for their being first offenders which applied to all of them, were applied to each appellant's individual circumstances, but notably, all evolved around their age and family responsibilities. The factor of the appellants' degree of 24 participation as an aggravating, or a mitigating factor, does not feature at all among the factors mentioned by the learned Justices of Appeal when they were sentencing the appellants. We agree or accept that, under the law, the degree of participation of an individual offender may be an aggravating, or a mitigating factor, depending on an individual's role, when sentencing co - offenders convicted under the doctrine of common intention; and that the discretion to issue varying sentences in such circumstances of common intention convictions lie entirely with the court handling the matter. However, in the instant appeal, there is nothing aPparent on the record to show that the learned Justices of Appeal did consider the degree of participation as either a mitigating, or an aggravating, factor, when they were sentencing the appellants. While it is an evident correct finding of the learned Justices of Appeal, as is apparent on the record, that the Appellants in the instant appeal were identified at the scene of the crime while their co-appellants at the Court of Appeal were not, the said Justices of Appeal did not directly state in their judgment that they relied on that finding to give the varying sentences. In their judgment, the learned Justices of Appeal do not give a reason why, after their finding that all the appellants had common intention regarding the murder of the deceased, they did not impose a uniform punishment to all the appellants. Nor did they mention the degree of individual participation as a factor they considered when they imposed the sentences against the appellants before them. Rather, they sentenced ,{3 (3'd appellant then) and A4 (4th 25 appellant then) to 20 years' imprisonment each, while the appellants in the instant appeal were sentenced to 30 years' imprisonment. Contrary to the Respondent's submissions, we, as a second appellate court, cannot speculate on behalf of the first appellate court, that it must surely have considered the degree of each individual appellant's participation. We find this to be a miscarriage of justice, since the sentences against the appellants who were atl principal offenders in the commission of the murder were varying without explanation. This, is not in any way to imply that they had no discretion to impose varying sentences, since the Sentencing Guidelines allow such discretion. In that regard, we would agree with the Appellants that the learned justices of Appeal issued varying sentences to the appellants before them without justification. This is in the sense that, having rightly emphasized the need to have uniformity and consistency in sentencing, they did not give reasons for, or explain, the variation in the sentences they imposed against the co - accused appellants before them. All they needed was to state the degree of participation of the Appellants as either a mitigating factor, or an aggravatin g factor, in the sentencing of the Appellants, which would form the justification for their varying sentences. This, in our opinion, is the reason the Appellants are challenging the higher sentence that was imposed against them, compared to the lower sentence their counterparts got. Thus having correctly found that the 1't, 5tt', and 6th appellants physically participated in the murder of the deceased as they were 26 placed on the scene of crime; and that the 2nd, 3r'r, and 4th had corunon intention in the commission of the offence and therefore were also principal offenders; and having considered the aggravating factors which applied equally to all the appellants as principal offenders, and the specific mitigating factors that applied to each appellant, which specific factors did not apparently include the appellants' degree of participation in committing the offence, the next logical and just step would have been, in our considered opinion, to impose sentences to each of them without disparily. The foregoing notwithstanding, however, we have considered the provisions of Paragraph 19 of the Sentencing Guidelines which outlines a range of 35 years' imprisonment to death penalty, as the range for a sentence on conviction of murder. On that basis, save for the aspect of the first appellate court not justifying or explaining the varying of the sentences against the appellants convicted under common intention, we find the sentences of imprisonment for 30 and 20 years respectively imposed by the Court of Appeal against the appellants were within the sentencing ranges under the said Sentencing Guidelines. Secondly we do not dispute those mitigating and aggravating factors the Court of Appeal expticitly considered in respect of each of the appellants before it. 21 Thus, based on our findings above, and on the authority of Kiwalabye Bernard vs Uganda (supra), we find reason to interfere with the Court of Appeal sentences which did not explain or justify why the sentences for the appellants found to have had common intention in the murder of the deceased were varying. This finding, in our considered opinion, is an important factor while sentencing. We, for that reason, set aside the sentences of 30 years' imprisonment imposed against each of the appellants in the instant appeal. In the interests of fairness and justice, we invoke the inherent powers of this Court, under rule 2 (2) of the Rules of this Court, and consider afresh the mitigating and aggravating factors on record regarding each individual Appellant. In addition to the mitigating and aggravating factors correctly considered by the Court of Appeal during the sentencing of the Appellants, we explicitly add their degree of participation, that is, based on the concurrent finding on record that they were physically present and actively participated in the killing of the deceased, as an aggravating factor, as opposed to their co - accused, Nakiganda Annet and Nassimbwa Babra (Appellants at the Court of Appeal), who are not before this Court. Based on the foregoing, we find it justifiable and fair, in the circumstances, to substifute the Court of Appeal sentence that we set aside for being based on a wrong principle, with a sentence of imprisonment for 30 years against each of the Appellants. We deduct the period of 3 years each of the Appellants spent in pre - trial detention from each of the said sentences, which then amounts to a period of 27 years' imprisonment, to run from the 1* day of June 2012, the date of conviction. Thus, Ground 2 of the appeal succeeds. 28 All in all, this appeal fails on Grounds 1, and to that extent, is dismissed, while it succeeds on Ground 2, and is accordingly allowed. In that connection, the orders of the Court of Appeal regarding the sentencing of the Appellants are hereby set aside and substituted with the orders of this Court, as follows:- 1. The 1.t appellant is sentenced to 30 years' imprisonment for the murder of Kasozi Gerald. The period of 3 years spent in pre - trial detention is deducted from the 30 years. 2. The 2.,1 appellant is sentenced to 30 years' imprisonment for the murder of Kasozi Gerald. The period of 3 years spent in pre - trial detention is deducted from the 30 years. 3. The 3.a appellant is sentenced to 30 years' imprisonment for the murder of Kasozi Gerald. The period of 3 years spent in pre - trial detention is deducted from the 30 years. 4. The appellants shall accordingly each serve a period of 27 years' imprisonment from the 1st day of J:une 2072, the date of conviction. We so order. Dated at Kampala this day lr,-,. vtoa-&<"-argc---< Prof. Lillian Tibatemwa-Ekirikubinza f ustice of the Supreme Court 2026. t0k I P! I'crcy Night Tuhaise |ustice of the Supreme Court Mike Chibita f ustice of the Supreme Court ffi Stephen Musota |ustice of the Supreme Court Catherine Bamugemereire |ustice of the Supreme Court 30