5 THE REPUBTIC OF UGANDA
IN THE COURT OF APPEAT OF UGANDA HOLDEN AT GUtU
CRIMINAT APPEAL NO.O835 OF 2OL4
(Arising from High Court CriminalSession No. 1-1.0 of 2Of2 at Arua)
ICORAM : Eg on do-Nte nde, Ti b u ly o, Ko zi bwe Kowu m i. ! ! Al
10 BETWEEN
ENDREONZI ORENZIO APPEIIANT
AND
UGANDA RESPONDENT
(An appeal from the iudgment of Okwanta, J delivered at Arua on 25.h September 2014)
15 JUDGMENT OF THE COURT
The appellant was convicted for murder contrary to Sections 188 and
189 of the Penal Code Act. On 25th September 2014 the appellant was
sentenced to 20 years' imprisonment.
Background.
20 The appellant and his late wife, Tiko Grace, lived together at Livu-Vurra
village in Arua District. On 14th February 2011a quarrel ensued between
them over money. The appellant started assaulting the deceased with
a club and a hoe in the presence of their children until she collapsed
and died.
25 The appellant escaped from the village but was later arrested and
charged with murder. The post mortem report on the body of the
deceased revealed that she died of cardiogenic shock secondary to
haemorrhage. The base of the skull was fractured and there were
multiple soft tissue injuries all over the body.
30 The appellant was examined and found to be 42 years old with a sound
mind. The appeal is against the sentence imposed by the trial court.
Page 1 of 5
fi
5 Ground of Appeal.
The learned trial Judge erred in law and fact in sentencing the
Appellant to a term of 20 years' imprisonment which was manifestly
harsh and excessive in the circumstances.
Representation.
10 Harriet Otto represented the appellant on state brief while Catherine
Namakoye, Senior Assistant Director of Public Prosecutions, in the
Office of the Director Public Prosecutions represented the respondent.
On application by Counsel for the Appellant, the appeal filed 10 years
out of time was validated. Leave to only appeal against the sentence
15 also granted by the Court. Counsel for the parties filed submissions,
which, with the leave of court were adopted as their final submissions
in the determination of the Appeal.
Submissions by Counsel for the Appellant.
It was submitted that it was in the discretion of the trial court to
20 determine a sentence and an appellate court cannot interfere with such
a sentence save for instances including when it was manifestly
excessive.
Counsel argued that the Appellant was a first offender,45 years old,
and had spent 3 years and 7 months on remand at the time he was
25 se nten ced to 20 years'imprisonment.
The court was referred to Atuku Margret Opii V Uganda, Criminal
Appeal No.123 of 2008 (unreported) in which the appellant who killed
a neighbour's daughter aged L2 years by drowning had a sentence of
death reduced to 12 years. Counsel also cited Twikirize Alice V Uganda,
30 CACA No.0764 of 2OL412016l UGCA 81 in which a sentence of 37 years
was reduced to 25 years'imprisonment.
Counsel urged the court to apply the rule of consistency and reduce to
sentence imposed by the court to 1.3 years.
Page 2 of 5
W
5 Submissions by Counsel for the Respondent,
It was submitted for the respondent that the trial court correctly
evaluated the aggravating and mitigating factors before arriving at Life
imprisonment as the appropriate sentence.
The court considered the fact that the appellant was a first offender,
10 was 45 years old, was a family man with 10 children and had spent 3
years and 7 months on remand at the time he was sentenced to the
impugned pu nishment.
ln aggravation of the sentence, it was argued that the Court considered
the nature of injuries occasioned to the deceased, the degree of force
15 used and the fact that she was murdered in the presence of her
ch ild ren.
Counsel for the Respondent referred the court to Ojangole John
Micheal V Uganda SC CriminalAppeal No. 35 of 2OO0 [2001] UGSC 10
in which the Supreme Court declined to alter a 34 years' prison term on
)a account of the submission that the appellant had children to look after.
The court stated that it could not on appeal re-consider aggravating and
mitigating factors raised at the trial.
The court was also referred to Bashasha Sharif V Uganda SC Criminal
Appeal No.82 of 2018 [2019] UGSC 55 where the court upheld a death
25 sentence on the principle that one of the objectives of sentencing is
deterrence. The decision was premised on the manner in which the
Appellant murdered an innocent child, which "depicted o deproved
person devoid of oll humonity."
Analysis.
30 As a first appellate court, it
our duty to re-appraise all evidence that
is
was adduced before the trial court and come to our own conclusions on
the facts and the law while making allowance for the fact that we
neither saw nor heard the witnesses testify.
See Kifamunte Henry V Uganda SC Criminal Appeal No. 10 of 1997
35 [1998] UGSC 20.
Page 3 of 5
f,
5 It is also established law that an appellate court will only alter a
sentence imposed by the trial court if it is evident that it acted on a
wrong principle, or overlooked some material factor, or if the sentence
is manifestly excessive in view of the circumstances of the case.
See Livingstone Kakooza V Uganda SC Criminal Appeal No. L7 ol L993
10 [1994] UGSC 17.
The maximum penalty for the offence of murder is death which,
however, is reserved for the rarest of the rare cases. The circumstances
in which the offence the appellant was convicted for did not warrant
the death sentence and the trialjudge opted for a custodial sentence of
15 20 yea rs.
We found it imperative to reproduce the sentencing order of the trial
Judge in the determination of the Appeal:
"lhave listened to the submissions by counsel
of both sides. I have also heard the accused
2A person in mitigation. lfind that the accused
is a first offender aged 45 years old today and
has spent 3 years and 7 months on remand.
He is a family man with ten children left
without any care taker as his other wife had
25 left him before his arrest, and his mother is
dead. He has an old father. However, I find
murder resulting from domestic violence
very rampant within this jurisdiction. Life is
sacred and given by God only and no one has
30 any right to take away the life of another.
The law condemns that,
The manner in which the accused caused the
death of his wife in the presence of these
very children he is pleading for calls for a very
35 deterrent and stiff sentence. Taking into
Page 4 of 5
5 account the 3 years and 7 months already
spent on remand which period I hereby
deduct from the sentence, I do sentence the
accused to 20 years' imprisonment."
We note from the above excerpt of the sentencing ruling that the trial
10 court ably considered both the mitigating and aggravating factors
surrounding the circumstances in which the offence was committed.
The trialjudge considered allthe mitigating factors, aggravating factors
as well as the evidence on record and properly directed himself on the
law. We find the sentence of 20 years' imprisonment imposed by the
15 trial court appropriate in the circumstances. We find no merit in the
appeal, which is accordingly dismissed.
Signed, delivered and dated at Gulu this.R.l'Eay of ..S$.S.V.... ZOZ+.
20 Fredrick Egonda-Ntende
Justice of Ap eal
(
Ma ret Tibulya
25 Jus ce of Appeal
Moses Kazibwe Kawumi
Justice of Appeal
30
Page 5 of 5
