Secondly, the Justices say that the trial Judge treated Muhairwe while sentencing him as a parent or guardian of the victim of defilement which is an aggravating element for offenses of this nature given the resultant breach of trust but they were never related.
Justice Egonda Ntende lead the panel that made the decision.
The Court of Appeal in Kampala has quashed a 20-year
jail term that was handed to Francisco Muhairwe a resident of Kahungye
Cell in Isingiro District for aggravated defilement on grounds that it was
harsh and excessive.
Consequently, the Justices of the Court of Appeal comprising
of Fredrick Egonda-Ntende, Catherine Bamugemereire and Christopher Madrama
have ordered for Muhairwe’s immediate release reasoning that he had at the time
of their judgement spent more than 13 years in jail which they say was ample
punishment given the circumstances of the case.
The facts of Muhairwe's case are that on
December 10th 2007, he performed a sexual act with a 12 year old girl ,
and was two days later arrested and later arraigned before Mbarara
Magistrates Court on January 4th 2008.
He was committed for to the High Court for trial
and was subsequently tried and convicted of aggravated defilement and on June
26th, 2011, Muhairwe was found guilty and sentenced to 20 years
But not happy with the decision, Muhairwe through
his lawyer Sam Dhabangi appealed only against his sentence
with one ground that the learned trial Judge erred in law and fact in imposing
a sentence of 20 years imprisonment which he said was manifestly excessive and
harsh in all circumstances.
The Chief State Attorney David Bisamunyu
represented the office of the Director of Public Prosecutions and they all
filed written submissions while during the hearing Muhairwe appeared online
from Mbarara Government Prison.
But in their Judgment dated December 16th 2021,
the Justices of the Court of Appeal led by Fredrick Egonda-Ntende , have set
Muhairwe free saying that given the circumstances of the case, the trial Judge
made errors while sentencing him and was subsequently given an excessive
The Court of Appeal notes that the trial
Judge did not take into account that Muhairwe was a first time offender
with no criminal record but this was ignored by the lower Court in mitigating
Secondly, the Justices say that the trial
Judge treated Muhairwe while sentencing him as a parent or guardian
of the victim of defilement which is an aggravating element for offenses of
this nature given the resultant breach of Trust but they were never related.
"The Appellant was not related to the victim
and this element should not have been taken into account in determining
sentence for the crime the Appellant was convicted of," reads the appeal.
It adds that: "The learned trial Judge
declined to take into account a matter that he should have taken into account
and then took into account a matter that was not relevant in the
sentencing of this Appellant."
According to the Justices, these two errors must
have contributed to what they have found as manifestly harsh and excessive
" Prior to that he had spent 3 and a half
years in pre-trial custody,". further reads the judgement. "He has spent on account of this crime a period
of about 13 and a half years in custody. This is more than ample
punishment for the Appellant."
As such, the Justices in their three-page judgement have allowed Muhairwe's
appeal and ordered for his immediate release unless he is held on other lawful