By Spy Uganda
The court of Appeal of the General Court Martial has quashed the 8 year jail sentence that was handed to former Boda-boda 2010 patron Abdalla Kitata and his driver Ngobi Soweri by the General Court Martial in 2019, which convicted them on charges of illegal possession of arms and government stores.
The Court has since reduced their punishment to serving 1 year, 8 months and 6 days in jail.
Kitatta, through his lawyers appealed against the sentence that was handed him by Lt. Gen. Andrew Gutti, the Chairman of the General Court Martial together with his driver Ngobi.
Here below is the full judgment from the Court of Appeal;
THE REPUBLIC OF UGANDA
UGANDA PEOPLE’S DEFENCE FORCES
IN THE COURT MARTIAL APPEAL COURT HOIDEN AT MAKINDYE
CRIM. APPEAL No. 09 AND 012 OF 2019.
(Arising from the decision or the GCM in Crim. Case No. UPDF/GCM/005/2018
[QUORUM: HON. ELLY TURYAMUBONA, BRIG. ALEX NDYANABO, LT. COL. DEO KARIKONA)
- HAJJI KITATA ABUDALLAH
- NGOBI SOWERI…………. APPLICANTS
JUDGMENT OF THE COURT
Kitata Abudallah and Ngobi Soweri, hereinafter referred to First and Second Appellant respectively, were among the 13 accused persons who appeared before the GCM on 13/2/2018 on several charges of unlawful possession of firearms and ammunition. C/s 3 (1) 2 (e) of the Firearms Act and unlawful possession of military stores C/s 160 (2) (c) of the UPDF Act.
Apart from the first and second Appellants who were convicted on some accounts, the rest of the accused persons were acquitted on all counts at various stages of the trial.
The First Appellant was convicted on count 3 of unlawful possession of a pistol serial No DEPO IDEAS 2008 and count 5 of unlawful possession live ammunition of a pistol, while the Second Appellant was convicted on count 1 of being in possession of an SMG serial No. UE 4467/1998 and count 4.
In the instant case, there was no evidence that the convicts endangered anybody’s life by mere possession of firearms. We have also noted that the prosecution did not disprove beyond reasonable doubt any assertion made by defence in mitigation as requited by Paragraph 59 of the Constitution (sentencing guidelines for Courts of Judicature) (practice) directions, 2013. The trial Court should have relied on me sentencing guidelines in determining an appropriate sentence to pass especially the second schedule to the sentencing guidelines, which spelt out factors to take into consideration when sentencing.
After considering previous decisions and sentences in similar cases, (precedents) and considering the circumstances surrounding the case and the desire to keep uniformity in sentencing for similar offences and after considering the mitigating factors and aggravating factors we find that the sentence imposed on the Appellants were manifestly harsh and excessive and amount to miscarriage of justice.
We set aside the maximum sentence of 10 years imposed on each of the Appellant on each count and we find a sentence of 3 years imprisonment on each count for each Appellant appropriate sentence in the circumstances of this case.
However, in line with Art. 23 (8) of the Constitution of the Republic of Uganda, which requires the Court to deduct the period the convict will have spent on remand, the first Appellant will serve a sentence of I year, 8 months and 6 days on count 3, and 1 year, 8 months and 6 days on count 5. The sentence will run concurrently.
The second Appellant will serve a sentence of 1 year, 8 months and 6 days on count 1, and the like period on count 4. The sentences will run concurrently.
We have also noticed that there was no order made as to the deposal of exhibit.
We order that the golden pistol serial No DEPO IDEAS 2008 and 5 rounds of the ammunition of the pistol and SMG serial No UE 4467- 1998 with 33 rounds of live ammunitions of SMG be forfeited or returned to the State pursuant to Sec. 33 of the Firearms Act which makes mandatory for the Courts to make such orders.