5 

THE REPUBLIC OF UGANDA 

IN THE SUPREME COURT OF UGANDA 
AT KAMPALA 
(CORAM: KATUREEBE;C.J;TUMWESIGYE;KISAAKYE; 
ARACH-AMOKO;TIBATEMWA-EKIRIKUBINZA; 
		J.J.S.C.) 
CRIMINAL APPEAL NO.34 OF 2014 
BETWEEN 
OKELLO GEOFFREY :::::::::::::::::::::::::::::::::: APPELLANT 

15 
20 

AND 
U
	GANDA	RESPONDENT 
••••••••••••••••••••••••••••••••••••••••••••••••• 
[Appeal from the decision of the Court of Appeal at Kampala (Kavuma, Mwangusya and 
Bossa, JJA) dated 18th March, 2014 in Criminal Appeal No. 329 of 2010] 
JUDGMENT OF THE COURT 

Okello Geoffrey, the appellant, was indicted for the offence of 
aggravated defilement contrary to Section 129(3), (4) (c) of the Penal 
Code Act. The particulars of the offence were that between 
December 2008 and January, 2009, the appellant being a person of 
	25 	authority at Latai Primary School performed a sexual act with 
Akwero Sarah, a girl below the age of 18 years. On 30th November, 
2010 he was convicted by the High court (Kasule, J,) (as he then 
was) and sentenced to a term of 22 years imprisonment. He 

_. 

	5 	appealed to the Court of Appeal which upheld his conviction and 
sentence, hence this appeal. 
Background 
Akwero Sarah (PW 1) was a primary school pupil at Latai Primary 
School where the appellant worked as a teacher. She resided with 
 her mother Ayiko Margaret (PW2) near Latai Primary School in 
 Acholi bur sub county in Pader District. The appellant resided at 
the school. He had met Akwero Sarah (PWl) five months before his 
arrest and in his words "I had love for her." He started a 
\ relationship with her which developed into a sexual relationship, 
 and when her mother (PW2) got to know of it, she warned the 
<' 	appellant to keep off her daughter as she was still young. The 
appellantis said to have stopped having a sexual relationship with 
Akwero Sarah but that he later resumed the affair. 
 During the night of 20th March, 2009 while Akwero Sarah was at 
		home, Okello Lameck, appellant's friend, came and told her that the 
appellant wanted to meet her at his house. She immediately 
disappeared from the house and went to meet the appellant who 
was waiting for her on the road nearby. When the two met, they 
proceeded to the school where they were met by the headmaster 
 who asked them what they were doing in the school compound at 
that hour, and accused them of having a sexual relationship which 
 they both denied. 

[2] 

	5 	The headmaster called people who gathered at his home and he told 
them what happened. The matter was reported to the police who 
arrested the appellant. The appellant and PWI were taken to 
Patongo Hospital for medical examination. The examination 
indicated that the girl (PWl) was aged 15 years and her hymen had 
10 been ruptured. The appellant was found to be aged 25 years. 
The appellant was thereafter indicted for the offence of aggravated 
defilement, tried and convicted by the High Court sitting in Gulu 
and sentenced to 22 years imprisonment. After his conviction and
 sentence the appellant appealed to the Court of Appeal on two 
15 grounds namely: 
1. That the learned judge erred in law and fact when he convicted 
the appellant on uncorroborated evidence thereby occasioning a 
miscarriage of justice. 
2. That the learned trial judge erred in law and fact when he failed 
20 to properly evaluate the evidence, thus arriving at a wrong decision 
occasioning a miscarriage of justice. 
The Court of Appeal heard the appeal and dismissed it. The 
appellant lodged his appeal to this court on the following grounds: 
1. That the learned Justices of the Court of Appeal erred in 
	25 	law when they failed to adequately re- evaluate the 
evidence on record relating to the victim's credibility 
thereby coming to an erroneous decision. 
[3] 

	5 	2. That the learned Justices of the Court of Appeal erred in 
law when they upheld an illegal sentence imposed on the 
appellant by the trial judge. 
At the hearing of the appeal the appellant was represented by Mr. 
Henry Kunya on state brief while the respondent was represented 
10 by Mr. Brian George Kalinaki, Principal State Attorney. Both 
counsel relied on their written submissions. 
Counsel's submissions 
On ground one, learned counsel for the appellant submitted that 
the Court of Appeal as a first appellate court failed to subject the 
	15 	evidence on record to fresh scrutiny before reaching its decision. He 
contended that the victim's credibility was questionable and that, 
therefore, her evidence that the appellant had sex with her could 
not be solely relied upon to support the appellant's conviction. He 
stated that whereas PW 1 told court that she did not reveal to 
	20 	anybody her sexual relationship with the appellant, the victim's 
brother later told court that she had disclosed to him the several 
sexual encounters she had had with the appellant. 
In response, learned counsel for the respondent opposed the appeal 
and supported the Court of Appeal's decision. He submitted that 
	25 	the Court of Appeal properly re-appraised the evidence as a whole 
and reached the right conclusion. He further submitted that the 
girl's testimony did not require corroboration given her age and the 
trial judge believed her as a credible and truthful witness. 
[4] 

5 Consideration of the appeal. 
We have held in a number of decisions that this court as a second 
appellate court will not re-evaluate the evidence in the manner of a 
first appellate court unless it is of the view that on approaching its 
task the first appellate court failed to properly review the evidence 
	10 	on record. See Kifamunte Henry vs. Uganda, SCCA No. 10 of 1997 
and Bogere Moses vs. Uganda, SCCA No. 1 of 1997. 
We are of the view that the Court of Appeal and the trial court not 
only correctly applied the principles to the case but also properly re- 
evaluated the evidence on record relating to whether the appellant 
	15 	had sexual intercourse with a minor aged 15 years and who was a 
pupil in his school over whom he exercised authority. 
Akwero Sarah, PWl, testified in court that the appellant had sex 
with her between December 2008 and January 2009. This evidence 
is corroborated by that of Oyat Churchill (PW3) , a brother to PWl, 
	20 	who testified that PW 1 had told him that she had had sex with the 
appellant five times but that on the day of his arrest they did not 
engage in sexual intercourse. 
PW2, the mother of PWl, testified that she had come to know that 
the appellant was having an affair with her daughter and that she 
25 called him and warned him to desist from it as her daughter was 
still young. Apparently the appellant stopped the affair but later 
resumed it. 
[5] 

· - ' 

	5 	There is evidence from PW 4, the headmaster of the primary school, 
that when he saw the appellant with PW1 in the compound of the 
school at about 10:00 p.m., he took them to his house where he 
called LC 1 Chairperson and LC 1 Deputy Chairperson and other 
people, and that both the appellant and PW1 admitted to have had 
10 a sexual relationship. 
The appellant admitted that he was in love with PWI but denied 
that he had any sexual relationship with her. The trial judge who 
had opportunity to observe the demeanour of PW1 and that of the 
appellant did not believe him. He believed PW 1 instead. The Court 
	15 	of Appeal agreed with the trial court that there was sufficient 
evidence that PW 1 and the appellant had had a sexual relationship. 
We find no sound reason to fault their finding. 
Counsel for the appellant questioned PW 1’s credibility because 
according to counsel during her cross examination PW 1 stated that 
20 	she did not report her sexual encounters with the appellant yet she 
had also earlier testified that she had told her brother (PW3) that 
she had had sex with the appellant. We do not agree with counsel 
that PW 1 contradicted herself when she stated on one hand that 
she did not report her sexual encounters with the appellant and on 
25 	the other that she told her brother about it. Her brother (PW3) had 
confronted her and demanded to know whether she had had sex 
with the appellant. She admitted it. This in our view was not 
"reporting" and should not be used as a basis for questioning her 
credibility. 
[6] 

	5 	In conclusion, it is our view that the Court of Appeal properly re- 
evaluated the evidence before it confirmed the appellant's conviction 
of aggravated defilement. On that account, therefore, ground one of 
appeal fails. 
Supplementary ground of appeal 
	10 	Following the hearing of the appellant's appeal by the court, the 
appellant on 7th March, 2017 wrote a letter to the court complaining 
about his counsel's omission to raise a ground of appeal concerning 
the trial judge's alleged failure to administer Assessors oaths. In the 
letter aforementioned the appellant claimed that he gave firm 
	15 	instructions to counsel, to include this ground and he was upset 
that his counsel had not included that ground in the memorandum 
of appeal. The appellant framed "the supplementary ground of. 
appeal" as follows: 
"That the learned Justices of the Court of Appeal erred in 
	20 	law when they affirmed the conviction of the appellant by 
the trial court which omitted one of its core duties of 
administering Assessors' oaths, hence causing a travesty 
of justice." 
We must observe that filing a supplementary ground of appeal after 
 closure of hearing is not catered for by the rules of this court. Rule 
62 of the Judicature (Supreme Court Rules) Directions provides 
that "The appellant shall, within 14 days after service on him 
[7] 

	5 	or her of the record of appeal, lodge a memorandum of appeal 
with the registrar." 
Rule 63(1) of the rules of this court provides that "The appellant 
may at any time, with the leave of the court, lodge a 
supplementary memorandum of appeal" and rule 63(3) provides 
	10 	that "Any person lodging a supplementary memorandum under 
this rule shall cause a copy of it to be served on the 
respondent." We do not think that the phrase "at any time" 
should be interpreted to mean that a supplementary memorandum 
of appeal can be lodged after the closure of the hearing of the 
 appeal. 
During the hearing of appeal, arguments by the appellant's counsel 
are based on the grounds specified in the memorandum of appeal 
or in the supplementary memorandum which might have been filed 
before the hearing with leave of court. (See rule 70 of the rules of 
	20 	the court). The arguments may be written or oral. The hearing is 
then closed and the court may deliver its judgment either 
immediately or reserve it for delivery on a future date. 
Apart from the fact that the so-called supplementary memorandum 
was filed after 14 days following service of the record on the 
	25 	appellant which was beyond the time permitted, and also after the 
hearing of the appeal, the court did not give the appellant leave to 
file it as the rule requires. So it would be wrong to call it "a 
supplementary memorandum of appeal." Furthermore, a copy of it 
[8] 

	5 	was not served on the respondent. All these omissions constitute 
serious procedural irregularities that the court cannot condone. 
Additionally, considering that this court is a second appellate court 
and the issue of the assessors not having been sworn by the trial 
judge was not raised in the Court of Appeal, we are inclined to think 
10 that the appellant raised this issue merely as an after-thought. 
For the above reasons, we decline the appellant's request to 
consider his "supplementary memorandum of appeal". 
Second Ground of Appeal 
The appellant's second ground of appeal is that the learned Justices 
15 of Appeal erred in law when they upheld an illegal sentence. 
Learned counsel for the appellant informed the court that this 
ground of appeal on sentence was not raised in the Court of Appeal 
and that, therefore, no submissions were made on it. He, however, 
pointed out that this was a mistake of the appellant's counsel (who 
	20 	was on State brief in the Court of Appeal) and that this mistake 
should not be visited on the appellant. 
Counsel argued that a custodial sentence of 22 years imprisonment 
was illegal since the maximum custodial sentence was 20 years. He 
relied on the case of Livingstone Kakooza vs. Uganda, SCA No. 17 
	25 	of 1993, where it was held that a sentence of life imprisonment 
meant 20 years under the Prisons Act. Counsel further argued that 
[9] 

	5 	by the time the appellant was sentenced the decision in Tigo
 Stephen vs. Uganda, SCCA No. 08 of 2009 had not been made. 
Counsel prayed court to entertain the ground of appeal on sentence 
on the basis of Euchu Micheal vs. Uganda, SCCA No. 54 of 2000, 
where a ground of appeal which had not been raised in the Court of 
	10 	Appeal was allowed to be argued on the ground that it raised an 
important legal issue. 
In response, learned counsel for the respondent argued that the 
maximum sentence provided for the offence of aggravated 
defilement is death and therefore a sentence of 22 years 
15 imprisonment cannot be said to be illegal. 
Consideration of Second Ground 
In the case of Livingstone Kakooza vs. Uganda (supra) where the 
appellant had been convicted of manslaughter it was held that 
section 49(7) of the Prisons Act (which is now section 86(3)) 
	20 	provides that imprisonment for life shall be deemed to be 20 years 
and that since the accused had been on remand for two years the 
sentence of 18 years imposed on him by court amounted to life 
imprisonment. The court reduced the sentence from 18 years to 10 
years imprisonment. 
25 In Tigo Stephen vs. Uganda (supra) this court held as follows: 
"We hold that life imprisonment means imprisonment for 
the natural life [whole life] term of a convict, though the 
[10] 

	5 	actual period of imprisonment may stand reduced on 
account of remission earned. 
We note that in many cases in Uganda, courts have 
imposed specific terms of imprisonment beyond twenty 
years instead of imposing life imprisonment. It would be . 
	10 	absurd if these terms of imprisonment were held to be 
more severe than life imprisonment." 
In terms of severity of punishment in our penal laws a sentence of 
life imprisonment comes next to the death sentence which is still 
enforceable under our penal laws. 
	15 	However, following the case of Attorney General vs. Susan Kigula, 
Constitutional Appeal No. 03 of 2005, which declared a mandatory
 death sentence to be unconstitutional though it remains the 
maximum sentence for capital offences, courts have not found it 
necessary to pass death sentences on convicts. Courts have instead 
	20 	opted to pass sentences of terms of imprisonment of well above 20 
years in respect of offences which formerly attracted a mandatory 
death sentence. 
Section 86 (3) of the Prisons Act deems a sentence of life 
imprisonment to be 20 years for purposes of remission. If life 
imprisonment is the highest sentence only next to a death sentence, 
where then do sentences of above 20 years imprisonment fall? 
[11] 

	5 	We are of the View that sentences of more than 20 years 
imprisonment for capital offences cannot be said to be illegal 
because they are less than the maximum sentence which is death. 
Courts have power to pass appropriate sentences as long as they do 
not exceed the maximum sentences provided by law. Article 28(8) of 
	10 	the Constitution provides that "no penalty shall be imposed for a 
criminal offence that is severer in degree or description than the 
maximum that could have been imposed for that offence at the time 
when it was committed". The maximum sentence for the offence of 
aggravated defilement is death. 
	15 	If counsel for the appellant's argument was to be accepted, all 
custodial sentences would not exceed 20 years' imprisonment. And 
with remission for good behavior under the Prisons Act, convicts for 
capital offences who are not sentenced to death would serve a 
sentence of only 13 years imprisonment. This, in our view, would be 
	20 	inconsistent with the proper administration of justice under Article 
126(1) of the Constitution which requires courts to administer 
judicial power in conformity with the law and with the values, 
norms and aspirations of the people. 
This is not to say, however, that the irrational situation presented 
	25 	by section 86(3) of the Prisons Act which deems life imprisonment 
to be 20 years imprisonment should be left to remain on our statute 
books. We think Parliament should as a matter of urgency amend 
this law to bring it in conformity with the new trend of sentencing. 
[12] 

- . 

	5 	We agree with learned counsel for the respondent that the sentence 
of 22 years imprisonment passed by the trial court on the appellant 
is not illegal since it is less than the death sentence which is the 
maximum sentence provided for the offence of aggravated 
defilement. 
	10 	We have noted with concern failure by counsel for the appellant 
who was on state brief in the Court of Appeal to raise a ground of 
appeal on sentence in the memorandum of appeal he prepared and 
filed in that court. Counsel Henry Kunya who represented the 
appellant in this court attributed the omission to do so on the 
	15 	mistake of the appellant's counsel in the Court of Appeal. The Court 
of Appeal was unable to consider the appropriateness of the 
sentence of 22 years imprisonment passed by the trial judge against 
the appellant because no ground of appeal had been raised In 
connection with the sentence. We think this was dereliction of 
	20 	professional duty by the appellant's counsel. All counsel, even on 
state brief, must always take their professional duties seriously and 
not let down their clients. 
Be that as it may, section 5(3) of the Judicature Act does not allow 
an appellant to appeal to this court on severity of sentence. It allows 
 him or her to appeal against sentence only on a matter of law. And 
since we have held that a sentence of 22 years imprisonment is not 
illegal, we cannot interfere with it. 
Accordingly this ground must fail. 
[13] 

• f 
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" 
..•. 

5 In the result, this appeal is dismissed. 

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

	

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	Joth 

JOTHAM TUMWESIGYE 
JUSTICE OF THE SUPREME COURT 

Dr. Esther Kisaakye 
JUSTICE OF THE SUPREME COURT 

Arach - Amoko 
JUSTICE OF THE SUPREME COURT 

Prof. Lillian Tibatemwa-Ekirikubinza 
JUSTICE OF THE SUPREME COURT 

[14] 

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