5 

THE REPUBLIC OF UGANDA 
IN THE SUPREME COURT OF UGANDA AT KAMPALA 
CRIMINAL APPEAL NO.01 OF 2014. 

[CORAM: TUMWESIGYE, KISAAKYE, MWANGUSYA, MWONDHA, 
	10 	TIBATEMWA-EKIRIKUBINZA, JJSC.] 
BETWEEN 

15 

MAGALA RAMATHAN 

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AND 

APPELLANT 

UGANDA 

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RESPONDENT 

	20 	[Appeal from the decision of the Court of Appeal at Kampala by Opio- 
Aweri, Balungi Bossa and Kakuru, JJA) Criminal Appeal No. 0416 of 
2009 dated 22nd January) 2014.J 
JUDGMENT OF THE COURT 
	25 	This is a second appeal against the sentence of the High Court 
delivered by J. W. Kwesiga J on 24th June 2009 at Kampala. The 
particulars of the case are that the appellant was convicted of 
manslaughter on 2 counts. The appellant was sentenced on each 
count to a term of 7 years imprisonment to be served consecutively. 
	30 	He' appealed to the Court of Appeal against both the conviction and 
sentences. Regarding the sentences, the appellant contended that the 
trial judge erred in imposing consecutive sentences. Both grounds of 
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	• 

	5 	appeal were dismissed and the Court of Appeal upheld the conviction 
and the trial Judge's decision that the sentences be served 
consecutively. 
Dissatisfied with the Court of Appeal decision, the appellant appealed 
to this Court on one ground as follows: 
	10 	1. The learned Justices of the Court of Appeal erred in law and 
fact in upholding the aggregate sentence of 14 years 
imprisonment which was manifestly excessive and illegal in 
the circumstances, and occasioned a failure of justice. 
Representation 
15 	At the hearing of this appeal, the appellant opted to represent 
himself. The respondent was represented by Jane Okuo Kajuga, 
Senior Principal State Attorney in the Directorate of Public 
Prosecutions. 
Appellant's submissions 
20 	The appellant submitted that the learned Justices of Appeal failed to 
direct their mind to the learned trial judge's failure to follow 
procedural law during the sentencing process. He submitted that in 
Uganda, it is a rule of law that a trial court must during sentencing 
consider the remand period. That in arriving at the sentence, the 
25 	period he spent on remand (10 months) as well as that spent on bail 
(4years) had to be considered because his freedom was limited. That 
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	5 	the failure to consider both periods as part of the remand rendered 
the sentences imposed illegal. 
In support of the above argument, he relied on Article 23 (8) of the 
Constitution which provides that: 
When a person is convicted and sentenced to a term of 
	10 	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 appellant also relied on the authorities of Bashir Ssali vs. 
15 Uganda SCCA No. 40 of 2004 and Bukenya vs. Uganda SCCA No. 
3 of 2013 to emphasize the argument that failure to consider the 
remand period renders a sentence illegal. 
Furthermore, the appellant faulted the finding of the learned Justices 
of Appeal that the trial judge had the discretion to direct the 
20 	sentences to run either concurrently or consecutively and that the 
aggregate sentence of 14 years imprisonment was neither harsh nor 
excessive. The learned Justices of Appeal had relied on Section 2 (2) 
of the Trial on Indictments Act and held as follows: "Our 
understanding of Section 2 of the Trial on Indictment Act is that the 
25 	general rule is for the High Court to impose consecutive sentences and 
directing sentences to run concurrently is the exception. " 
It was also argued that the sentence imposed was excessive because 
the trial judge did not consider the mitigating factors presented in 
3 

	5 	court. The mitigating factors were that he committed the crime as a 
result of provocation by the crowd of people who broke his car 
windscreen and was therefore not in full control of his mind; was a 
first time offender and that at the age of 51 years, he had the capacity 
to reform and contribute to society. He also submitted that he was a 
	10 	family man with 11 dependents who looked up to him for emotional 
and financial support. 
The appellant relied on the South African authority of State vs. 
Makwanyane [1995] (3) S.A 391 to support the argument that a 
court is obliged to consider the mitigating factors presented. 
	15 	In support of the fact that he was a first time offender, the appellant 
relied on Benjamin Odoki's Guide to Criminal Procedure, 3rd 
Edition (2006) at page 173 wherein he stated that, "the fact that an 
accused person is a first offender or has had previous good record is a 
valid mitigating factor ... JJ 
	20 	In regard to the appellant's age as a mitigating factor, there was 
reliance on the authority of the Court of Appeal of Uganda - Kabatera 
Stephen vs. Uganda Criminal Appeal No. 123 of 2001- where the 
court stated that, "we are of the opinion that the age of an accused 
person is always a material factor that ought to be taken into account 
	25 	before sentence is imposed ... failure to consider the age of the 
appellant caused a failure of justice. JJ 
Respondent's submissions 
4 

	5 	Counsel for the respondent conceded that the honourable Justices of 
the Court of Appeal erred by confirming the sentences and yet the 
learned trial judge did not take into consideration the period that the 
appellant had spent on remand. She submitted that this court can 
invoke Section 7 of the Judicature Act to set aside the sentence, 
	10 	take into account the remand period and arrive at an appropriate 
sentence. 
The respondent however disagreed about the period of 4 years and 4 
months as the period spent on remand. Counsel submitted that part 
of the said period was spent on bail and only 10 months were spent 
	15 	in custody. Counsel therefore argued that the Court should consider 
only the 10 months the appellant spent in lawful custody as the 
remand period. 
In regard to the appellant's submission that his being provoked ought 
to have been considered as a factor to mitigate the sentence, the 
20 respondent submitted that provocation could not be considered as a 
mitigating factor because the legal effect of this is to reduce the 
offence of murder to the lesser offence of manslaughter. 
Further, counsel for the respondent submitted that whereas the 
mitigating circumstances had been raised before the trial judge, the 
25 judge did not specifically refer to them in his sentence because the 
court considered the aggravating factors to have outweighed the 
mitigating factors. 
Analysis of Court 
5 

	5 	Although the appeal was based on only 1 ground, the submissions 
bring out 3 legal issues for our determination: 
	(i) 	Whether a judicial officer is obliged to consider mitigating 
factors while sentencing. 
	10 	(ii) Whether the trial judge's order that the sentences run 
consecutively was an error in law. 
(iii) Whether the failure to take into consideration the remand 
period rendered the entire sentence illegal. 
15 Issue 1 
We will first determine the aspect of the mitigating factors. 
The appellant submitted that the mitigating factors were not 
considered. On the other hand, the respondent contended that the 
mitigating factors were considered but the aggravating factors 
20 superseded the mitigating factors. 
During sentencing, the trial judge stated as follows: 
I do give a sentence that both punishes the convict and warns people 
who hold guns not to abuse them and use them against the people who 
are defenseless and innocent. I hereby sentence the accused person 
	25 	as follows: imprisonment for (7) seven years in Count 1, imprisonment 
for (7) seven years in Count 2. The sentences should be served 
consecutively. 
The Court of Appeal in confirming the sentence given by the trial 
Judge stated as follows: 
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	5 	((We find that the appellant having acted in the manner that he did and 
his actions having resulted in death of two people, the Judge correctly 
convicted him of manslaughter. " 
We note that in sentencing, both the trial court and the Court of 
Appeal did not make any reference to what was presented by the 
10 accused! appellant as mitigating factors. 
Judicial discretion is a vital part of imposing sentence and it is trite 
law that this lies with the trial court. [See: Kyalimpa Edward vs. 
Uganda SCCA No.10 of 1995]. However, the discretion is not 
absolute. Judicial discretion is an issue of accountability and should 
	15 	be exercised judicially. A judicial officer is accountable to explain the 
reasons for exercising the discretion in a particular way. 
Our justice system requires that an accused person be given an 
opportunity to say something in mitigation of the sentence. It follows 
that in arriving at a sentence, a judicial officer is obliged to balance 
20 the mitigating factors against the aggravating factors. 
However, after identifying the mitigating and aggravating factors, a 
judge may come to the conclusion that in the circumstances of the 
particular case, the aggravating factors outweigh what would have 
been mitigating factors. This principle was well laid out in the 
	25 	persuasive authority of S vs. Vilakazi 2009 1 SACR 552 (SCA), 
where the Supreme Court of South Africa held that: 
In cases of serious crime, the personal circumstances 
of the offender, by themselves, will necessarily recede 
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	" 	- 

	5 	into the background. Once it becomes clear that the 
crime is deserving of a substantial period of 
imprisonment, the questions whether the accused is 
married or single, whether he has 2 children or 3 ... are 
largely immaterial to what that period should be. 
	10 	Nevertheless the fact that the judicial officer was alive to what the 
accused submitted in mitigation must be evident on record. It must 
therefore be stated by the judicial officer that the sentence was 
arrived at with both the mitigating and aggravating factors in mind. 
It is only then that the accused will be sure that the judge addressed 
	15 	his or her mind to the cited mitigating factors but nevertheless came 
to the conclusion that the aggravating factors outweighed the 
mitigating ones. 
We therefore find that the courts below erred in only referring to the 
aggravating factors while making no mention of the mitigating 
20 factors. 
It was also the appellant's submission that his being provoked should 
have been considered in mitigation. That by neglecting this factor, 
the trial court meted out an excessive sentence. The respondent on 
the other hand argued that provocation cannot be considered as a 
25 	mitigating factor in sentencing since the reduction of the offence from 
murder to manslaughter was based on the court's acceptance that 
the accused had killed his victim as a result of provocation. 

	5 	The essence of the argument was that the appellant had already 
benefited from the "plea". 
In our view, whereas the Penal Code Act creates the statutory defence 
of provocation in Sections 192 and 193, with the result that a 
murder is reduced to manslaughter, this does not mean that the law 
	10 	does not recognize the ordinary meaning of provocation as a possible 
mitigating factor in regard to sentencing. In ordinary parlance, 
provocation refers to wrongful conduct that makes someone angry 
and prompts them to physically retaliate against the wrong doer. 
There is no doubt that the circumstances covered by the statutory 
	15 	defence of provocation are not uniform. Within the statutory 
provision (of Section 193 (supra)) for example, the law recognizes 
assaults as well as insults. It must also be noted that case law 
interpretation of what constitutes provocation varies widely. Thus 
abusive words have in some cases been recognized as provocation 
	20 	(Rex vs. Hussein el o Mohamed 9 EACA 52), finding a spouse in an 
act of adultery has in some cases been recognized as provocation[R 
V AZayina [1957] R & N 536 (Ny)] engaging in actions of witchcraft 
in the presence of another person has in some cases been interpreted 
as provocation and so has been physical assault (Eria Galikuwa vs. 
	25 	R (1951) 18 EACA 175, Republic vs. Juma [1974]). We are 
therefore of the view that the nature of provocation varies from case 
to case. 
The nature of provocation can be described in terms of gravity of 
provocation and must therefore have a bearing on sentences given to 
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	5 	convicts whose manslaughter was by reason of provocation. We also 
note that whereas a successful plea of provocation leads to a 
reduction of the crime of murder to manslaughter, the law does not 
provide a mandatory sentence to those convicted under the section 
but rather provides only a maximum sentence of life imprisonment. 
	10 	In light of the above analysis, we are unable to accept the 
respondent's submission that once provocation has been considered 
to reduce a murder charge to manslaughter, it cannot be considered 
as a mitigating factor in sentencing. 
However, despite the fact that the courts below erred in not 
	15 	pronouncing themselves on the mitigating factors and only 
considered the aggravating factors which surrounded the offences 
committed, we are satisfied that the failure did not cause any 
injustice. Having weighed the aggravating factors against what would 
be considered mitigating factors surrounding the offences 
	20 	committed, we are satisfied that the crime is deserving of a 
substantial period of imprisonment and 7 years for each offence was 
appropriate punishment. 
Issue 2 
In answering the question whether the order that the sentences run 
	25 	consecutively was an error in law, we must again emphasize that 
sentencing is a matter in which a judge exercises discretion and 
furthermore that judicial discretion should be exercised judicially. 
More specifically, Judicial Officers have the discretion to decide the 
10 

	5 	manner In which the sentences given will be served - whether 
concurrently or consecutively. Section 2 (2) of the Trial on 
Indictments Act provides: 
When a person is convicted at one trial of two or more 
distinct offences, the High Court may sentence him or 
	10 	her for those offences to the several punishments 
prescribed for them which the court is competent to 
impose, those punishments, when consisting of 
imprisonment, to commence the one after the 
expiration of the other, in such order as the court may 
	15 	direct, unless the court directs that the punishments 
shall run concurrently. (Emphasis of Court) 
We agree with the Court of Appeal's interpretation of Section 2 (supra) 
that the general rule is for the High court to impose a consecutive 
sentence and a convict will only concurrently serve sentences arising 
20 out of distinct offences if the court so directs. 
We however must underscore the need for an accused to know why 
a judge arrived at a particular decision. In the persuasive authority 
of Ndwandwe vs. Rex [2012] SZSC 39, the Supreme Court of 
Swaziland considered what judicious exercise of the sentencing 
25 discretion entails as follows: 
The exercise of sentencing discretion must be a 
rational process in the sense that it must be based on 
the facts before the court and must show the purpose 
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· . 

	5 	the sentence is meant to achieve. The Court must be 
conscious and deliberate in its choice of punishment 
and the records of the court must show the legal 
reasoning behind the sentence. The legal reasoning 
will reflect the application of particular principles and 
	10 	the result it is expected to achieve. The choice of 
applicable principles and the sentence will depend on 
the peculiar facts and needs of each case. The choice 
will involve a consideration of the nature and 
circumstances of the crime, the interest of the society 
	15 	and the personal circumstances of the accused other 
mitigating factors and often times a selection between 
or application of conflicting objectives or principles of 
punishment. (Our emphasis) 
It is therefore expected that whether a judge opts for a 
	20 	consecutive or a concurrent running of sentences, her 
reasoning should be on record. 
Be that as it may, it is a trite principle of law that in ordering a 
consecutive sentence, the total sentence must be proportionate to the 
offence and the circumstances surrounding each case. 
25 	The above principle is reflected in Section 8 of the Sentencing 
guidelines which provide that: 
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10 

	5 	(1) Where the court imposes consecutive sentences, the 
court shall first identify the material part of the conduct 
giving rise to the commission of the offence and 
determine the total sentence to be imposed. 
(2) The total sum of the cumulative sentence shall be 
proportionate to the culpability of the offender. 
In pronouncing the number of prison years for each count and that 
the sentences would run consecutively, the trial judge mentioned the 
justification for the sentence - punitive on the one hand and 
deterrent on the other. 
	15 	We therefore find that the trial judge judicially exercised his judicial 
discretion. 
Issue 3 
We now turn to address the aspect of consideration of remand In 
sentencing. 
	20 	It was the appellant's submission that the learned trial judge failed 
to consider the period of 4 years and 4 months that he had spent on 
remand. It is however on record that the appellant spent only 10 
months in prison custody and the 4 years he was on bail. 
This Court has recently held in Rwabugande vs. Uganda (supra) that 
25 a sentence arrived at without taking into consideration the period 
spent on remand is illegal for failure to comply with a mandatory 
constitutional provision. Further that, consideration of 
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	5 	the time spent in lawful custody means deducting that period from 
the final sentence. 
It is however clear in our minds that where an individual is convicted 
but released on bail pending appeal, the time he is out on bail cannot 
be deducted because the individual would not be suffering any 
	10 	curtailment of freedom. It is therefore the 10 months which will be 
deducted. 
In conclusion, we find that the appeal partly succeeds to the extent 
that in imposing the term of imprisonment, the 10 months period 
spent on remand ought to have been taken into account. 
	15 	Consequently, the sentence of 14 years imprisonment imposed by the 
High Court judge and confirmed by the Court of Appeal is here by set 
aside. 
We have addressed our mind to the mitigating factors presented by 
the convict and weighed them against the fact that he fired bullets 
20 	into a crowd of unarmed people, a factor we consider aggravating. In 
the circumstances, a sentence of 7 years imprisonment would still be 
appropriate for count 1. We also consider that a sentence of 7 years 
imprisonment would be appropriate for Count 2. We maintain that 
because two (2) lives were lost as a result of the actions of the 
25 appellant, the sentences will be served consecutively. 
In light of Article 23 (8) of the Constitution, the 10 months the 
appellant spent on remand is hereby deducted from the sentence. 
The appellant will therefore serve a total sentence of 13 years and 2 
months. 
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5 We so order. 

	Dated at Kampala this .. 20th. day of September 	2017.
.................................... 

JOTHAMTUMWESIGYE 
10 JUSTICE OF THE SUPREME COURT . 

•................................... 

15 DR. ESTHER KISAAKYE 
JUSTICE OF THE SUPREME COURT. 

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25 

30 

	EL 	D MWANGU A 
JUSTICE OF THE SUPREME COURT . 

.. ~ .••..•......... 

FAITH MWONDHA 
JUSTICE OF THE SUPREME COURT. 

~ 
.............. ~.~.~~ . 

PROF. LILLIAN TIBATEMWA-EKIRIKUBINZA 
JUSTICE OF THE SUPREME COURT. 

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