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THE REPUBLIC OF UGANDA 
IN THE SUPREME COURT OF UGANDA AT KAMPALA 
CRIMINAL APPEAL NO.22 OF 2014. 

[CORAM: J. TUMWESIGYE, S. ARACH-AMOKO, A.NSHIMYE, F. MWONDHA, 
	10 	L .TIBATEMWA-EKIRIKUBINZA, JSC

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BETWEEN 
KWAMUSI JACOB:::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::: APPELLANT 
VERSUS 
U
GANDA	RESPONDENT 

[Appeal from the decision of the Han. Rubby Aweri Opio, Kenneth 
Kakuru and F.M.S. Engonda Ntende, JJA, Criminal Appeal No. 0203 
of 2009 dated 24th October, 2014] 
JUDGMENT OF THE COURT 
This is a second appeal from the decision of the High Court delivered by Lugayizi J on 9th July 2009 Vide criminal case No 1343 of 2007. 
The background facts: 
        The appellant was convicted by the High Court of Manslaughter on his own plea of guilty and sentenced to ten years imprisonment. He appealed against sentence to the Court of Appeal. The ground of  appeal was that the time period he had spent on remand was not 
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considered by the High Court trial judge before passing the 
sentence. 
In resolving the above ground, the Court of Appeal inter alia stated 
that: 

Although the learned trial judge stated that he had taken into 
	10 	account all mitigating and aggravating factors before passing the sentence, we do not think this was sufficient to cover Article 23(8) of the Constitution. 
It is clear that the learned trial judge did not specifically state 
that he had taken into account the period the appellant had 
	15 	spent on remand. We accordingly find that the learned trial 
judge erred when he sentenced the appellant to ten years 
imprisonment without taking into account the time he had spent 
on remand as required under Article 23(8) of the Constitution. 
The sentence is therefore illegal and a nullity and we hereby set 
	20 	it aside. 
Having set aside the sentence of ten years, the Court of Appeal in 
exercise of its powers under Section 11 of the Judicature Act 
imposed a fresh sentence of 12 years after taking into account the 
remand period. 
	25 	It is this sentence that led the appellant to appeal to this Court on 
the following ground: 
2 

 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. 

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Dated at Kampala this 16th day of June 2017
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STELLA ARACH-AMOKO 
JUSTICE OF THE SUPREME COURT. 

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AUGUSTIN E NSHIIMYE 
JUSTICE OF THE SUPREME COURT. 
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FAITH MWONDHA 
	25 	JUSTICE OF THE SUPREME COURT . 
	................... 	. 
LILLIAN TIBATEMWA-EKIRIKUBINZA 
30   JUSTICE OF THE SUPREME COURT. 
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