Vincent Ssenyonjo v Uganda (Criminal Appeal No. 58 of 2020) [2025] UGSC 39 (15 August 2025)

‘THE REPUBLIC OF UGANDA ‘THE SUPREME COURT OF UGANDA AT KAMPALA (Coram: Tuhaise, Musote, Madrama, Bamugemereire & Mugenyi, JSC) CRIMINAL APPEAL NO. 58 OF 2020 VINCENT SSENYONJO «.rossssnsnnnnnn snnsnsensesnsns APPELLANT VERSUS UGANDA ...snnnnnnnsnnonnnsnsiinnnmnnnsnnnamnnnsnsmnnnsns RESPONDENT (Appeal from the decision of the Court of Appeal (Musoke, Muhanguzi & Kasule, JJA) in Criminal Appeal No. 3 of 2015)

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JUDGMENT OF THE COURT

‘A. Introduction

1. This a second appeal from a decision of the High Court in exercise ofits original jurisdiction, Mr. Vincent Ssenyonjo (the appellant’) was indicted and convicted of two counts of aggravated robbery contrary to sections 285 and 286(2) ofthe Penal Code Act, Cap. 128 and one count of rape contrary to sections 23 and 124 of the Penal Code Act. He was He was sentenced to term sentences of 30 ‘and 40 years’ imprisonment for aggravated robbery and rape respectively, which sentences were to run consecutively,

2. On appealto the Cour of Appeal against both his conviction and sentence, the conviction was upheld but the sentence was set aside. It was substituted wih term sentences of 13 years and 6 months’ imprisonment on the frst count of aggravated robbery and 11 years and 6 months on the second of the same offence, while the offence of rape attracted a sentence of 20 years and 6 months’ imprisonment. All the sentences were to run concurrently. The appellant now appeals to this Court (on a singular ground that ‘the learned Justices of Appeal erred in law when they upheld an illegal sentence which is inconsistent with previous judicial precedence,

3. _Atthe hearing ofthe appeal, the appellant was represented by Mr. Henry Kunya holding brief for Ms, ‘Sarah Awelo, while the respondent was represented by Ms. Fatuma Nakafeero, a Chief State Attorney.

B. Determination

4, In a nutshell, the frst appellate court is faulted for substituting the sentences imposed by the trial court with sentences that are allegedly inconsistent wih udicial precedents. ttis thus proposed that the 20-year sentence imposed by he frst appeliate court forthe offence of rape be substituted with a 10-year sentence

5. Leamed counsel forthe appellant cited numerous authorities in support ofthis proposition. Retracing the duty upon frst appeliate courts as laid down by this Court in Bernard Kiwalabye vs Uganda, Criminal Appeal No. 143 of 2001 (unreported), itis argued that an appellate court isnot to interfere with the sentence imposed by the trial court in exercise of its discretion unless it results into a sentence that is 50 manifestly excessive or low as to amount to a miscarriage of justice, or where a trial court ignores an important consideration while passing the sentence, or where the sentence imposed is plainly wrong in principle. In that case, it was further observed that where itis necessary

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tointerfere with the sentence imposed by the trial court, the appellate court should follow the principle ‘of consistency and uniformity n sentencing. Hence inthe latter case of Godfrey Mwanje vs Uganda, Criminal Appeal No 266 of 2015 (cited with approval in Godfrey Mbunya vs Uganda, SC Criminal ‘Appeal No. 4 of 2011), this Court held that ‘though no two crimes are identical, courts of law ‘must try as much as possible to ensure that cases of facts that bear some resemblance do attract similar sentences unless circumstances dictated otherwise

6. Mr. Kunya cites the sentences imposed in Tomson Naturinda vs Uganda [2017] UGSC 82 and David Tukamuhebwa Junior & Another vs Uganda [2018] UGSC 7. to urge this Court to entrench uniformity of sentence in cases of aggravated robbery coupled with sexual offences. in Tomson \Naturinda vs Uganda (supra) an 18-year concurrent sentence for aggravated robbery, defilement ‘and rape that had been reduced by the Court of Appeal to 16 years for aggravated robbery, 13 years {for defiement and 10 years for rape, was subsequently confirmed by this Court. On the other hand,

in David Tukamuhebwa Junior & Another vs Uganda (supra) the Court considered a 20-year | sentence to be appropriate for the offence of aggravated robbery while maintaining a 10-year sentence for the concurrent offence of rape.

7. Conversely, while acknowledging the circumstances highiighted in Edward Kyalimpa vs Uganda, Criminal Appeal No. 10 of 1995 (unreported) under which an appellate court may interfere with a trial court's sentence; the respondent contends that there is nothing ilegal about the 10-year sentence for rape that had been imposed by the trial court and was upheld by the fist appellate cour. Itis argued that the leamed Justices of Appeal duly considered al the legal principles that pertain to sentencing, including the time spent on remand, the mitigating and aggravating factors, and Consistency and uniformity in sentencing

8. Distinguishing David Tukamuhebwa Junior & Another vs Uganda (supra) from the circumstances ofthe present case, its argued thatthe issue in that case was the failure by both lower courts to deduct the period thatthe appellant therein had spent on remand, That matter is nat in contention in the present Appeal. Meanwhile, this Cours observation in Tomson Naturinda vs Uganda (supra) thatthe re-sentencing of an appellant bythe Court of Appeal would not so facto render the resultant ‘sentence illegal, is opined to affirm Ms. Nakafeero's position on the legal of the impugned sentence in this Appeal

Iti thus proposed that insofar as the appellant essentially challenges the severity ofthe sentence, he runs afoul of section 5(3) of the Judicature Act, by virtue of which an appeal ony ies to the

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‘Supreme Court on legality of sentence. State counsel asserts that appeals against harshness or severity of sentence have been severally adjudged by this Court to offend that statutory provision | and are thus impropery before the Court, |

10, Section 5(3) of the Judicature Act does indeed proscribe second appeals before this court against severity of sentence inthe following terms:

Inthe case of an appeal against a sentence and an order other than one fixed by law, the accused person may appeal tothe Supreme Court against the sentence or order, on a matter ‘of aw, not including the severity ofthe sentence.

11, We do agree with leamed State Counsel thatthe foregoing statutory provision has been severally construed by this Court to preclude appeals to this Court in respect of severity or harshness of sentence, See James Kaserebanyi vs Uganda [2018] UGSC 79, Abelle Asuman vs Uganda [2018] UGSC 10, Jamada Nzabaikukize vs Uganda [2017] UGSC 30, Abdul Bonyo vs Uganda, Criminal Appeal No. 7 of 2041 (unreported) and Livingstone Sewanyana vs Uganda [2010] UGSC

16. In every one of the foregoing appeals, the Court restricted itself to the impropriety of appeals against sentence that were premised on harshness or severity of sentence, This postion was reiterated in Geoffrey Okello vs Uganda [2017] UGSC 37, where the Cour atfimed that section 5(3) ofthe Judicature Act only mandates i to entertain appeals against sentence on a matter of law. We most respectiully abide those positions of the law.

12. Inits more recent decision in Peter Odeke & 2 Others vs Uganda, [2025] UGSC 16, however, the Court noted with concer the growing practice of appellants lodging disguised appeals against the severity of sentence that were couched as appeals against inconsistency of sentence. We consider itecessary to reproduce the Court's decision in the matter in extensio, it was held:

‘A granular look at counsel or the appellants’ arguments exposes her arguments 2s undisquised submissions on excessiveness of the sentence. She laboured, unsuccessful, to prove the sxistence of inconsistency with previous judicial precedents which loophole te cour could use to ook int the sever of sentence passed agains the appelns. Counsel forthe respondent was romihe wiser. She di atempt to delve into the jurisdiction ofthis court but rater attempted to istinguish the factual circumstances ofthe case law refered to, ently missing the point. in conclusion we find that tis appeal isnt brought to this courtn conformity wih the fa nstead, we find thatit to bea pretest. An appeal disguised asa question of aw when indeed itis agains severity of sentence. We have no cause to believe that these sentences rase a question of aw so as 10

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