Adupa v Uganda (Criminal Appeal 81 of 2020) [2024] UGSC 42 (21 October 2024)

5 THE REPUBLIC OF UGANDA, IN THE SUPREME COURT OF UGANDA AT KAMPALA (CORAM: PROF. TIBATEMWA - EKIRIKUBINZA, CHIBITA, MUSOTA, MADRAMA & BAMUGEMEREIRE, JJSC) CRIMINAL APPEAL NO 81 OF 2020 10 ADUPA DICKENS} wwevnnrnisemmnnernnnnneeuntnenennentnsesn APPELLANT VERSUS UGANDA} neenernernmnennnnnnntnnnnnitnenmnnnernenenenenee RESPONDENT (Appeal against the decision of the Court of Appeal Holden in Gulu, before their Lordships Kenneth Kakuru, Percy Night Tuhaise, and Remmy Kasule, 18 LWA delivered on the 18" of January, 2020 in Criminal Appeal No. 267 of

JUDGMENT OF COURT The appellant appealed from the decision of the Court of Appeal which dismissed his appeal against a sentence imposed by the High Court. The 20 appellant had been sentenced to 31 years’ imprisonment with effect from the date of his conviction by the High Court on the 30" of June 2017. The appellant was indicted, tried and convicted of the offence of murder. The facts were that on 7 of May 2013 at Aumi village, he murdered Sharon Eluny, his spouse. The appellant and Eluny had had disputes that led to the 25 deceased being taken back to her parents. The deceased returned to her matrimonial home to weed her millet field whereupon she was shortly thereafter found dead. She had been assaulted with a blunt object which left wounds on her body and thereafter her dead body was hanged. The appellant was arrested, tried and convicted of the murder of the deceased 30 and sentenced accordingly. His ground of appeal in the Court of Appeal was against sentence only in that he averred that: a

5 “The learned trial judge erred in law and fact when she imposed a harsh and excessive sentence in the circumstances, thereby occasioning a gross miscarriage of justice to the appellant.”

In this court, the appellant's ground of appeal is that: The learned Justices of the Court of Appeal erred in law when they

10 upheld a sentence which is harsh, manifestly excessive and inconsistent with previous judicial precedent

At the hearing of the appeal, the appellant was represented by learned counsel Ms. Awelo Sarah on state brief while the respondent was represented by the learned Senior State Attorney Mr. Wanamama Mics 1s__ Isaiah. The appellant appeared via video conferencing from Upper Luzira Prison. The court was addressed in written submissions which had been filed on the court record by learned counsel and which were adopted variously by counsel as their address to this court. The appellant's counsel relied on Abaasa Johnson vs Uganda; Criminal 20 Appeal No 33 of 2010 for the proposition that that the Supreme Court will only interfere with a sentence imposed by the trial court in a situation where the sentence is illegal or founded upon a wrong principle of the law. It would equally interfere with sentence, where the trial court has not considered a material fact in the case; or has imposed a sentence which is harsh and 25 manifestly excessive in the circumstances. The appellant's counsel submitted that the sentence imposed against the appellant was excessive in that the appellant was of an advanced age and was convicted when he was 48 years old. At the time of the submissions, the appellant has served 10 years out of the term of 31 years’ imprisonment. At the time of the 30 submissions the appellant was 58 years old. Counsel prayed for the sentence to be reduced to 20 years’ imprisonment. Further he submitted that the appellant had acquired skills for example in carpentry while serving his sentence. He noted that these skills would sustain the appellant economically when he gets released from prison. Further that the appellant 35 would have an opportunity to impart his skills to the youth of his locality.

Counsel prayed for reduction of the sentence of 31 years to 20 years’ imprisonment from the time of the appellant's conviction. Further the appellant has 10 children of which four were with the deceased and six with other women. The appellant was a first-time offender and he was remorseful. Thirdly counsel submitted that the sentence was inconsistent

10 _with other precedents such as in Uganda Vs Uwera; Criminal Appeal No 312 of 2013 where the accused ran over her husband with a vehicle thereby causing his death and on appeal, a sentence of 20 years’ imprisonment was found appropriate. In Aharikundira Yustina vs Uganda, Supreme Court Criminal Appeal No. 27 of 2015, it was held that not all murders were

15 committed in the same circumstances and not all murders were of the same character. The court has to consider the circumstances and establish the appropriate sentence. He contended that the court had a duty to consider earlier precedents with similar circumstances and to ensure consistency in sentencing and equality before the law.

20 The appellant's counsel prayed that we allow the appeal and set aside the 31 years’ sentence of imprisonment and substitute it with a sentence of 20 years’ imprisonment.

In reply, the respondent's counsel opposed the appeal on the main ground that no appeal lies to the Supreme Court against severity of penalty,

25 The respondent's counsel relied on section 5 (3) of the Judicature Act cap 13 as well as the decision of the Supreme Court in Bonyo Abdul vs Uganda; Cr. App No. 07 of 2011 and Okello Godfrey vs Uganda Cr. App No. 70 of 2018 where the law was applied. In addition, the respondent's counsel contended that an appeal against the sentence being harsh and excessive goes to the

30 severity of penalty (See Abelle Asuman vs Uganda; Cr. App No. 66 of 2016). He submitted that if the consistency argument were to stand, the appeal should be resolved in favour of the respondent in light of the above authorities

5 Consideration of the appeal We have carefully considered the appellant's appeal, the submissions of counsel and the law. This is a second appeal from the decision of the Court of Appeal on appeal from the High Court and is governed by section 5 (3) of the Judicature Act. The respondent's counsel raised a preliminary point of

10 lawto the effect that no appeal lies to the Supreme Court against severity of penalty.

We have carefully considered the point of law which is of a preliminary nature because it touches on the jurisdiction of this court to hear any appeal against the severity of penalty. Secondly, we have considered whether the

15 issue of consistency in sentencing is a point of law that takes it out of the issue of severity of penalties.

The point of law arises from section 5 (3) of the Judicature Act, cap 13 which provides that:

(3) In the case of an appeal against a sentence and an order other than one fixed

20 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. A careful perusal of section 5 (3) of the Judicature Act is necessary. It provides inter aliathat an accused person may appeal to the Supreme Court against the sentence or order, on a matter of law, not including the severity

28 of the sentence. This means that an accused person may appeal against sentence on a matter of law. However, though the appeal may be on a matter of law, this should not include severity of penalty. In other words, the severity of penalty is excluded from matters of law that may constitute a ground of appeal against sentence,

30 This is clearly distinguishable from matters of law such as legality of sentence for instance under article 23 (8) of the Constitution which requires the sentencing court to take into account the period spent by the convict on remand prior to his conviction before arriving at the final sentence. Such an

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