THE REPUBLIC OF UGANDA
IN THE COURT OF APPEAL OF UGANDA AT KAMPALA
CRIMINAL APPEAL NO. 0296 OF 2010
WAKHEYA STEPHEN…………………….………………..…APPELLANT
VERSUS
UGANDA……………………………..………………………..RESPONDENT
[Appeal from the decision of the High Court of Uganda at the Anti corruption Division of the High Court Sitting at Kololo, before Honourable Justice Mugamba dated the 12th day of November 2010.]
CORAM:
HON. MR. JUSTICE RUBBY AWERI OPIO, JA
HON. LADY JUSTICE SOLOMY BALUNGI BOSSA, JA
HON. MR. JUSTICE KENNETH KAKURU, JA
JUDGMENT OF THE COURT
The appellant was on 12/ 11 /2010 convicted on 8 counts set out in the indictment and sentenced to 2 years imprisonment on each count all to run concurrently.
He was also ordered to refund shs. 31,915,040/-.
The memorandum of appeal contains only one ground which states as follows:-
“ The learned trial Judge erred in fact in not considering the time the appellant spent on remind while sentencing”
At the hearing of this appeal on 3rd December 2013, the appellant was represented by Mr. Julius Galisonga learned counsel and the respondent was represented by Ms. Namatovu.
It was submitted for the appellant that learned trial Judge erred in law when he did not consider the period the appellant spent on remand while passing sentence.
He submitted that it was a Constitutional requirement Under Article 23 (8) of the Constitution that Court must always take into account the period a convict spends on remand while passing sentence.
He submitted that the omission to do so occasioned injustice to the respondent.
Ms. Namatovu submitted that there was nothing on record to indicate that the appellant had spent 3 months on remand before trial. She also submitted that it could not be conclusively stated that the Judge did not take into account the period the appellant spent on remand as the Court record did not contain the allocutus.
The only issue before us is whether or not the learned trial Judge while passing sentence took into account the period the appellant had spent on remand.
We agree with Mr. Galisonga that this is a Constitutional requirement under Article 23 (8) of the Constitution.
That Article stipulates as follows;-
Article 23 (8)
“Where a person is convicted and sentenced to a term of 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.”
The above Article was considered by the Supreme Court in the case of Katende Ahmed vs. Uganda Supreme Court Criminal Appeal No. 6 of 2004 (Unreported).
While passing the sentence in this case before us the learned trial Judge stated as follows:-
“Sentence
I have listened carefully to what the state had to say regarding possible sentence. I have heard also what was said by the convict. I feel sorry for what the convict let himself in for. He was either daring or a gullible. Sadly for him he could not hide from the inevitable. I do not have to mention Global Fund and its allout to underline the gravity of the convict’s role. Enough has been said already. I take into account the fact that he is a first offender and that the he has family responsibility. His medical record has been shown to me showing his health is poor.
The convict acted recklessly and with impunity. He should be held to account therefore. I sentence him to two years’ imprisonment each on count 1, count 2, count 3, count 4, count 5, count 6, count 7 and count 8. The sentences are to run concurrently.
In addition I order that he refunds Shs. 31,915, 040 to the Government of Uganda which should initiate process for recovery.
Clearly the learned Judge did not take into account the provisions of Article 23 (8) of the Constitution while passing the sentence against the appellant.
However, there is nothing on record to indicate that the appellant was ever on remand. For the appellant to rely on Article 23 (8) the onus is on him to prove to the Court that he actually was in lawfully custody before the conviction.
The only evidence we have on this issue was stated by Mr. Galisonga from the bar, when he was asked by Court how long the appellant had been in prison before conviction, he replied as follows;-
“My Lords, he tells me that he stayed three months.”
The above is not sufficient for this Court to determine with certainty the period the appellant spent on remand.
It appears the appellant was at all materials times on bail, and that is why the issue of the remand period was never raised at the time of sentencing.
We accordingly find that the appellant has failed to prove that he was in lawful custody for 3 months prior to his conviction.
Article 23 (8) of the Constitution set out above is therefore not applicable.
For these reasons and for the reason we first gave on 3rd December 2013 this appeal fails and dismissed.
Dated at Kampala this 26th day of March.2014.
…………………………………………..
HON. MR. JUSTICE RUBBY AWERI OPIO
JUSTICE OF APPEAL
…………………………………………..
HON. LADY JUSTICE SOLOMY BALUNGI BOSSA
JUSTICE OF APPEAL
……………………………………..
HON. MR. JUSTICE KENNETH KAKURU
JUSTICE OF APPEAL
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