Kwamusi Jacob v Uganda [2017] UGSC 33 (16 June 2017)

5 Ground of appeal:

The Learned Justices of the Court of Appeal erred in law when
they enhanced the prison sentence of the appellant from ten years
to twelve years.

Representation:

10 At the hearing of this appeal, the appellant was represented by
Counsel Andrew Ssebugwawo on state brief while the respondent
was represented by Mrs Alice Komuhangi Khauka, Senior Principal
State Attorney in the Directorate of Public Prosecutions.

15 Counsel for the appellant adopted written submissions he filed.

The respondent's counsel on the other had made viva voce
submissions in reply to the appellant's submissions.

Appellant's submissions:

Counsel for the appellant stated that Section 132 of the Trial on

20 Indictments Act, Section 34 of the Criminal Procedure Code Act
and Rule 32(1) of the Court of Appeal Rules regulate the exercise
of criminal appellate jurisdiction of the Court of Appeal. That the
above provisions of law give the Court of Appeal power to confirm
or vary a sentence of a lower court but does not give court the

25 power to enhance sentence.

Counsel argued that the Court of Appeal's sentence of twelve years
amounted to enhancement of sentence. That such enhancement
was irregular because there was no cross appeal from the

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~. - 5 Respondent. -In: support of this argument, he relied on the

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authorities of Mugasa Vs Uganda SCCA No 10 of 2010 and Busiku

Vs Uganda SCCA No. 33 of 2011.

In further argument that the enhancement was irregular, counsel

10 stated that the practice of enhancing. sentences by courts has the
effect. of, 'discouraging convicts from lodging appeals for fear that
their sentences-may be enhanced. Counsel therefore prayed that the
appeal be allowed and the enhanced sentence be set aside.

15 Respondent's submissions:

Counsel for' the respondent submitted that there was no
enhancement of' sentence made by the Court of Appeal. That
enhancement. can only be done where there is a legal sentence and
not on an illegal sentence like the present appeal. It was Counsel's

20 argument that the Court of Appeal having set aside the High Court
sentence for failure' to consider the remand period, it imposed a
fresh sentence. That on this premise, there was no enhancement
made...

In conclusion, the respondent prayed that the appeal be dismissed
25 and the sentence of the Court of Appeal be upheld.

Analysis and Decision of Court.

The central issue in this appeal is whether Court of Appeal on its
own volition had powers to enhance sentence even where there is no

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~- - 5 cross appeal. The appellant's contention is that the Court of Appeal
erred in enhancing his sentence from ten years as meted out by the
High Court to twelve years in absence of a cross appeal from the
respondent. The Court of Appeal held as follows:

"Taking all the above into account and the fact that the

10 Appellant had been on remand for a period of one and half
years before conviction, we think that a sentence of twelve
years would meet the ends of the justice.

We accordingly set aside the sentence imposed by the trial
court and substitute it with a sentence of twelve years

15 imprisonment to run from the date of conviction".

The appellant, in support of his argument that the Court of Appeal's
sentence amounted to enhancement of sentence, relied on the
authorities of Mugasa vs. Uganda SCCA No.1 0 of 2010 and Busiku
vs. Uganda SCCA No 33 of 2011.

20 In Mugasa Vs Uganda (supra), the Court of Appeal enhanced the
sentence of the appellant from 17 years to 25years. On appeal
against enhancement, this Court was of the view that much as the
Court of Appeal had the power to vary a sentence according to
Section 132(1) (d) of the Trial on Indictment Act, proper

25 sentencing procedure had to be followed when varying sentences
imposed by lower courts.

In Busiku vs. Uganda (supra), the Appellant's sentence of 12 years
was enhanced to 20 years. The appellant challenged the
enhancement in the Supreme Court. The Court in allowing the

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5 appeal relied on its decision in weitire Asanisio vs. Uganda SCCA

No. 11 of 2010 and Mugasa vs. Uganda (supra) and held that no
universal standard could be set on the procedure appellate courts
should follow when varying a sentence imposed by the lower courts.

The Court however, maintained the view in Mugasa vs. Uganda that
the Court ought to give the appellant advance notice before a
sentence is enhanced to be afforded a hearing on the new sentence,
in the interest of justice.

We note that much as the above authorities are quite authoritative

15 on the issue of enhancement of a sentence by an appellate court,
they are irrelevant to the issue pertaining to the present appeal.
The authorities are distinguishable from the circumstances and
facts presented in the appeal before us.

20 In the present appeal, the Court of Appeal found that the High
Court did not take into account the time spent on remand which is a
constitutional imperative when sentencing. Article 23 (8) of the
Constitution provides:

"Where a person is convicted and sentenced to a term of

25 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. (Emphasis ours).

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5 The Court of Appeal having found that the High Court judge failed
to take into account the period of one and a half years the appellant
spent on remand, declared the sentence illegal. This court has
recently held in Rwabugande Vs Uganda SCCA No. 25 of 2014,
that, a sentence arrived at without taking into consideration the

10 period spent on remand is illegal for failure to comply with a
mandatory constitutional provision.

We note that the effect of declaring a sentence illegal is that no
sentence stands thereafter. The appellate court can thus invoke its
sentencing powers as a court of original jurisdiction to impose a

5 new sentence. This is what the Court of Appeal did. In exercise of
its powers given under section 11 of the Judicature Act and after
taking into account the period the appellant spent on remand,
imposed a new sentence of 12 years - which is appealed against.
What the appellate court would have done was to either remit the

20 case to the High Court so that the sentencing procedure is reopened
or the Court of Appeal would have invoked its powers under the
Judicature Act.

However before invoking the said powers, natural justice demands
that before an appellate Court imposes a sentence which is even

25 harsher than the one being set aside, it has to give the appellant an
opportunity to be heard on the proposal to impose a higher
sentence. The Court of Appeal having failed to observe this
fundamental requirement of the Constitution, the sentence it
imposed was a nullity. The Court of Appeal with due respect, set

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- 5 aside an illegal sentence of the High Court and substituted it with
another illegal one.

For that reason, the sentence cannot be allowed to stand. We
therefore allow the appeal and set aside the sentence of 12 years
imposed by the Court of Appeal.

10 Having done so, we note that on 7/7/2009 when the appellant was
sentenced by the High Court, the prosecution told court that the
appellant had been on remand of 1 72 years. A copy of the charge
sheet on the file is dated 2pt November, 2007.

The appellant has been in custody for a period slightly beyond 9
15 years. Considering that he could have benefited from earnings of
remission in prison, he could have completed his original sentence
of 10 years and released.

In the circumstances, we do not find it appropriate to send the file
back to the High Court for consideration of the period he was on
remand before resentencing.

We therefore order the immediate release of the appellant if he has
not already been released.