[2025] UGCA 97

#### THE REPUBLIC OF UGANDA

#### IN THE COURT OF APPEAL OF UGANDA AT I(AMPALA

(Coram:Geolfreg Kiryabwire, Muzamiru M Kibeedi & Oscar Kihika, JJA)

CRIMINAL APPEAL NO. COA-OO-CR-CN-OO73 of 2OL9 & 3L2 of 2O2O

# KATABALWA EMMANUEL ARIKO WEBALE : : : :: : : : : : APPELLANTS IrERSUS

## UGANDA ::::::: RESPONDENT

[An appeal against the decision of Jane Franci.s Abodo, Judge, in the High Court of Uganda at Kampala, made on the 2Vh of August 2018 in Criminal Session Case No. 1398-2O161

#### JUDGMENT OF THE COURT

## Introduction

[1] The Appellant was indicted for aggravated dehlement contrary to sections 129(3) and (a) of the Penal Code Act, Cap. 12O. He was tried, convicted, and sentenced to 32 years arld 6 months' imprisonment after deducting the two years and six months the Appellant spent on remand.

#### Background

[2] The facts admitted by the lower court are that towards the end of January and beginning of February 2016, the victim, MDB, a girl then aged 5 years, was left at home by the maid and Kisakye Rebecca, who had gone to the shops to buy items for breakfast.

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The Appellant, an immediate neighbour, went to the home of the victim's parents and found her watching television. He defrled her from the sofa set, after which he threatened to cut off her head if she reported. The victim narrated what had happened to Kisakye Rebecca.

[3] Kisalrye was scared and requested to return home. She informed her mother that MDB had been defiled. Kisa\re's mother rang the Victim's father and notified him about the incident. The victim's mother was also informed. The Appellant was arrested and charged. He denied the allegation, stating that the case was founded on the victim's father's grudge against the Appellant. The Appellant was convicted and sentenced, hence this appeal.

#### The Appeal

- [4] Being dissatisfied, the Appellant appealed to this court against the conviction and sentence on the following grounds: - THAT thc 7fro.1 &tdge erted. ln laut and Jact uhen h.e falled. to eualuate the etidence ott record regardlng lnconslstencles, tlwrebg occosilonlng a rnlscanrlage of Justlce upon the Appellant. I - tt. In the alternathrc, but utlthout prejudlce to the aboae, the learned trlal Judge erred. ln laut and Jact uthen he sentenced. the Appellant to 32 and 6 months' lmpr'lsonment, whtch wcls manifestlg ho,rsh qnd. excesslue.

#### Representation

- [5] At the hearing of the appeal, Ms. Nalule Shamim Rukiyah appeared for the Appellant on State Brief, while Ms. Sharifah Nalwanga, Chief State Attorney of the Directorate of Public Prosecutions, appeared for the Respondent. The Appellant was in court through a video link from Upper Maximum Prison, Luzrra. - t6l Both parties frled written submissions which have been considered by this Court.

#### Appellants Submissions.

- l7l Counsel for the Appellant faulted the learned trial Judge for convicting the Appellant based on inconsistent evidence of prosecution witnesses. Counsel referred to the inconsistencies of MDB (Pwl) at page 13 of the Record of Appeal, where the history recorded stated that Pw1 sustained her injuries three weeks before the examination date, yet Pw6 testified that Pwl's injuries were 24 to 48 hours old - t8l Counsel further referred to the inconsistencies of Pw1 on pages 12 and 13 of the record, where she stated that she told her mother and Tendo what happened. However, Kisakye Rebecca (Pws), at page 20 of the Record of Appeal, testified that Pwl told her about the defilement. Mwiri Ephrance,(Pw7l, at page 23, stated that one Cathy had told Pw5 about the defilement. Cathy

did not testify, and the Court should have treated the evidence of Pw7 as hearsay.

- [9] Counsel cited the case of Bo,hemuko Po,trlck & Anor as Uganda SCCA IVo. I of 7999, in which the court held that where the discrepancies and contradictions in evidence are found to be grave unless reconciled, will result in the rejection of the evidence. - [10] Counsel submitted that at page 65 of the Record of Appeal, the trial Judge held that she did not frnd contradictions regarding the age of the injuries. Counsel argued that it's a contradiction if the victim tells the mother that she was defiled a week ago but tells the doctor that she was defiled 3 weeks ago. Counsel pointed out that upon medical examination, the doctor found the injuries to be about 24 lo 48 hours old. Counsel contended that the contradiction should have been interpreted in favour of the Appellant since it led to doubt about whether a sexual act had occurred. - [ll]Concerning the sentence, Counsel submitted that the sentence was harsh and excessive. Counsel referred to page 33 of the Record of Appeal, where the antecedents of the Appellant were recorded: a first-time offender, remorseful, with two children and a sick mother to look after. Counsel contended that all the above mitigating factors should have resulted in a lenient sentence. - [12] Counsel further faulted the trial Judge for not considering the principle of consistency in sentencing. She cited the case of Page 4 of 16

Altrrikundlra Yustlna V Uganda, Supreme Coutt Crlmlnal Appeal 27 of 2OO5, in which the court held that consistency is a vital principle in sentencing, rooted in the rule of law, and requires that laws be applied with equality and without unjustifi ed differentiation.

[13] She cited cases where lesser sentences were \$ven: Ntambala Fred V Uganda Crlmlnal Appeal 334 of 2075, relled on ln Angugo V Uganda Crlmlnql Appeal 3a of 2074, where the Supreme Court approved a sentence of 14 years' imprisonment imposed on the Appellant by the tria-l court and confirmed by the Court of Appeal, considering it appropriate for aggravated defilement, Tlbotthanga Ellnmanuel V Uganda, Court oJ Appeal Crlmlnql Appeal.l\Io. 655 of 2O74, where tJee court gave a sentencing range of between 11 to 15 years in defilement cases without additional aggravating factors. Counsel prayed that the Appellant be sentenced to 11 years.

#### Respondents Submissions

[14] Counsel for the Respondent submitted that there was no contradiction regarding the time of the commission of the offence, which was minor. Counsel invited the court to consider that Pwl, a S-year-old, was bound to forget when the offence was committed. He referred to page 13, paragraph 1, of the record of appeal, where Pw1 testified that she did not remember when the Appellant came to their house but stated it was in the morning. Pw1 told her mother after days had passed. Counsel argued that

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the fact that the actual date of the commission of the offence is unknown does not point to deliberate untruthfulness.

- [15] Counsel further submitted that the fact of a sexual act being committed was proved by the evidence of Pwl at page 12 of the Record of Appeal, who described what the Appellant had done to her, which was corroborated by the evidence of Nabaye Juliet (Pw2) and Bukenya Wilson (Pw3) at pages 14 and 16 of the Record of Appeal, respectively. Pw2 got information about the alleged defilement from the victim's father, and she conhrmed the same from the victim. Counsel referred to PF3A at page 64 of the Record of Appeal, wherein the finding of the medical examination was conclusive that the victim had been defrled. Counsel referred to page 55 of the Record of Appeal, where the trial Judge established that the contradictions in the source of information about the defilement did not mean that it didn't occur. - [16] Counsel cited the case of Obutqlqtum Frqncls V Uganda, SCCA NO. 30 of 2075, where the court held that contradictions and inconsistencies in prosecution witnesses which are minor may be ignored unless they point to deliberate untruthfulness, while grave ones lead to rejection of evidence unless satisfactorily explained. Counsel invited the Court to find that the inconsistencies were minor. - [17] Concerning the sentence, Counsel for the Respondent submitted that aggravated dehlement carries a maximum sentence of death. He referred to Guideline 19(1) of the Constitution (Sentencing

Guidelines for Courts of Judicature) (Practice) Directions, 2013(Sentencing Guidelines), which prescribe a sentencing range of 35 years to death. He submitted that the sentence prescribed by the trial Judge was within range.

- [18] Counsel further submitted that no principle of sentencing or material factor was overlooked. He referred to page 59, line 13, where the court considered the aggravating factors to determine the sentence. These included the age difference of 29 years between the Appellant and the victim. The court further considered the trauma visited upon the victim. The court further considered the mitigating factors, including the fact that the Appellant was a frrst offender at a relatively young age with considerable family responsibilities. - [19] The court considered a sentence of 40 years and reduced it to ³⁵ due to mitigating factors. The court further deducted the period spent on remand, hence arriving at the sentence of 32 years and 6 months. Counsel relied on the case of Ko,rlsa Moses V Ugando SCCA 23 of 2076, where the Court held that an appropriate sentence is a matter of discretion of the sentencing Judge and an Appetlate Court will not interfere with the discretion unless the sentence is illegal or manifestly excessive as to amount to an injustice. - [20] Counsel cited the case of Kobusheshe Karaaerl V Ugonda CACA No.77O of 2(X)8, where the Court held that a court cannot interfere with the sentencing discretion of a trial court unless it is

apparent that the Judge acted on a wrong principle or overlooked a material factor. Counsel a-lso cited Buguroho Adonla ^V Uganda, the CACA OO7 of 2017, in which the Court held that sentencing is not a mechanical process and perfect uniformity is impossible to achieve.

## Determination of the Appeal.

## Duty of a First Appellate Court.

[2 1]As the first appellate court, this court has a duty to re-appratse all evidence adduced before the trial court and come to its conclusions of fact and law while making allowance for the fact that the court neither saw nor heard the witnesses testify. (See: Rule 30 (1)(a) of the Judlcadre (Coutt of Appeal Rules) Dlrectlons, S. I IVo. 13-1O; and Klfamunte Henry us. Uganda, Supremc Court Crlmlno,l Appeal No. 70 of 7997.

## Grounds one- Permitting evidence riddled with inconsistency.

[22] Counsel for the Appellant faulted the tria-l Judge for ignoring the inconsistencies concerning the time when the offence occurred-, and the source of information on the alleged dehlement. She submitted that the inconsistencies were major and cast doubt about whether the element of the sexual act was proven. Counsel for the Respondent, on the other hand, submitted that the contradiction regarding the time of the offence, if at all, was minor. She further submitted that prosecution witnesses provided corroborative evidence on the source of information about the offence.

- [23] We have reviewed the evidence adduced at the trial. The Prosecution called seven witnesses. The Appellant gave unsworn testimony. He denied the offence and testified that it was based on his failure to pay rent to the victim's parents on time. He also testified that he had mental health issues and could not erect because of dmg-related side effects; the prosecution sought leave to call another witness to counter this defence of failure to erect. The witness, a Prison Oflicer, testified and was recorded as witness one on page 30 of the Record of Appeal. The defence counsel at the trial court also sought to call a medical officer at Butabika Hospital, Dr. Julius Muron. The doctor did not testify, but his psychiatric examination report of the Appellant was a-llowed in evidence as Defence Exhibit 1. - palThe victim, testified as Pwl. She did not mention the exact time or date when she was sexually assaulted. However, she testified that she was having breakfast when the Appellant, a known neighbour, entered the house, defiled her from the chair and threatened to cut off her head if she told anyone. Pw1, in crossexamination, testifred that she told the mother after a week. She also told a one Tendo. In re-examination, she testified that she told her mother after a few davs. - [25] None of the other prosecution witnesses mentioned the time or date of the offence. The mother of the victim, Nabaye Juliet(Pw2),

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learnt of the dehlement from her husband (Pw3) on l8 10212016. This was after Mwiri Ephrance (Pw7) their family friend, rang Pw3 asking him to take the victim for medical checkup, to establish possible defilement. Pw7's daughter, Kisakye Rebecca (PwS), had told her mother that the victim informed Pw5 that the Appellant had defrled her. The victim had also requested Pw5 not to disclose the incident to the victim's mother.

- [26] Pws was spending her holidays at the victim's home. When the victim conhded in Pw5 what had occurred, PwS feared to tell the victim's parents. Instead, she requested to be returned to her home and informed her mother. Pw2 testified that her husband rang her on 18 lO2 12016 and notifred her that her daughter had been defiled. Pw2 later talked to the daughter, who confirmed the defilement. - l27l ln her judgment on page 55 of the Record of Appeal, the tria-l Judge found no contradiction concerning the time of the defrlement. The findings of the medical doctor in PF3A and the estimated time of injuries on the victim's private parts, recorded as 24 to 48 hours, were corroborated by the evidence of the victim. We cannot fault the trial Judge for the conclusion reached upon review of the evidence. The victim's testimony is that she was dehled in the morning while having breakfast. She was ltve years old at the time. Although in cross-examination, she testified that she told the mother after one week, this was clarified in reexamination when she said she reported to her mother after a few days.

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- [28] None of the witnesses speak of the exact time or date. The explanation isn't difficult to determine. The victim, from whom the report originated, could not, at 5 years old, tell with exactitude the date or time when she suffered the ordeal. The description of what she was doing at the time (taking breakfast) suflices. We thus find that there was no contradiction regarding the time when the offence occurred. - [29] Concerning the source of information, the trial Judge, in the evaluation of evidence held at page 55 of the Record of Appeal that '1 . . the vlctlm stnrck fite @s a aery tntthJul wltnessl she ura.s uery clear qnd conslstent ln ler testlmong eoen under cross-e,:xamlnatlon. I om lncllned to belleae her. The contradlctlons on uthether she told PutS or the mo:ld does not ln anu wau chanoe the fact that deftlement took Dlace". [Emphasis added]. Pw1 had testified at page 12 of the Record of Appeal, "I told mummg, but not on that dag. I uas scared he would cut off my head. I told mummg what happened afier a few days. I also told Tendo about the incident; she is the daughter of mg mother's senga". - [3O] Br2 testified that the maid knew but feared to tell the victim's parents. 39342 D/C Mudhuba Irene (Pw4), the Police Officer testified in cross-examination that the victim told the maid, but the maid disappeared. Pws, aged 12 years, testified that the victim informed her of the defilement. In cross-examination, she clarified that Auntie Cathy did not tell Pw5 about the defilement, and if it was what the police wrote, they got it wrong. Pw7 Page 1l of 15

testihed that her daughter (Pw5) notified her of the defilement. The victim had informed PwS about it. Pw7, in cross-examination, testihed that Cathy informed Rebecca (Pw5).

- [3 1] The original source of information is the victim. What is clear is that she told more than one person about the incident, including the mother, Pw2. The police statements referred to by the Defence Counsel, in which the victim alleges to have told the maid and not Pw5, were not tendered in evidence. The same cannot be used to discredit the prosecution witnesses. This notwithstanding, we agree with the trial Judge's conclusion that the source of information to the offence does not necessarily negate proof of any element of the offence when there is compelling evidence. - [32] In this case, proof of a sexual act was established through the evidence of the victim(pwl) and corroborated by the evidence of the medical doctor Emmanuel Bukalu, (Pw6). Pw2 noticed tenderness on her child's private parts. She applied crearn. At the time, she did not know that the victim had been defiled. The victim had only complained of pain. The evidence of the Appellant that he had secondary impotence resulting from drugs he was taking was not proved. The Appellant wrote a complaint to ODPP on 2l"tAugust 2Ol7(P exhibit 5) concerning the case, and the impotence issue was not featured in the said complaint - [33] The Appellant also stated in the said letter that he had never been to a Psychiatric hospital and had no mental issues to cause him to do such an act. While dismissing the Appellant's defence,

the trial Judge relied on PF 24lP Exhibit 4f to find that the Appellant did not raise the issue of impotence, nor did the doctor capture it when the Appellant was being examined. PF 24A was an agreed document. The trial Judge further relied on Defence Exhibit 1, the psychiatric report of the Appellant, which did not feature the impotence issue. Instead, the report indicated that the Appellant, diagnosed with Bipolar Affective Disorder, had sexual relations and seared a child. Impotence was not arnong the side effects established in the report.

[34] Given the contradiction in the evidence of the Appellant above pointed out, we find that the prosecution discharged the burden and the required standard of proof. The Prosecution brought evidence to discredit the allegations of impotence. Based on the evidence, we further find that the Appellant \Mas no longer indebted to the Victim. The issue of a grudge does not, therefore, arise. We agree with the trial Judge's conclusion. She did not make an error in the decision to convict. The 1"t ground of appeal therefore fails.

## Ground 2-whether the 32-year and 6-month sentence was harsh.

[35] We have considered the submissions of both parties and the cases cited. In calling for a harsh sentence, the prosecution highlighted the aggravating factors at page 32 of the Record of Appeal, including the victim being of tender yea-rs, '"'ulnerable and unable to defend herself. The Appellant used threats after the act and breached the trust as a neighbour.

- [36] At page 33 of the Record of Appeal, the mitigating factors highlighted included the Appellant being a first offender, on remand for 2 years and months, with mental illness, ^a breadwinner of two minor children with a sick mother under his care. The Appellant further sought leniency, stating that he sometimes goes without his medication in prison. - [37] The trial Judge's sentencing notes at pages 58 to 60 of the Record of Appeal restated the mitigating and aggravating factors above. She cited Sections 129(3) and 4(a) of the Penal Code Act, which prescribed death as a maximum sentence for the offence and held that the circumstances of this case did not call for a death sentence. Relying on the principle of proportionality, the trial Judge further held that life imprisonment was inappropriate in this case. - [38] The trial Judge considered the age difference of 29 years between the Appellant (34 years) and the victim (5 years), the abuse of trust as a neighbour, and the likely consequences on the victim. She applied item 3 of part 1 of the Sentencing Guidelines, which prescribed a starting point of 35 years' imprisonment, liable to be increased or reduced depending on the weight attached to the mitigating and aggravating factors. The trial Judge considered a starting point of 40 years. At page 60 of the Record of Appeal, she took into account the fact of the Appellant being a hrst offender, his elative youthfulness, and family responsibilities to bring the sentence down to 35 years. She further discounted the 2 years

and 6 months spent on remand to bring the sentence down to 32 years and 6 months.

- [39] It is now settled that for this Court, as a first appellate Court, to interfere with the discretion of the sentencing Judge, it must be shown that; (i) The sentence is illegal, (ii)The sentence is harsh or manifestly excessive, (iii) There has been a failure to exercise discretion, (iv) There was failure to take into account a materia-l factor, and (v) An error in principle was made. See Ruabugande V Ugandd, [2O77] UGSC 8; Kgaltmpq Edutard Vs. Uganda, Supreme Court Crlm:lnal Appeal No. 70 of 1995; Kamga Johnson Waaamuno I/s Ugando, Supreme Court, Crlmlnql Appeal No. 76 of 2OOO; and Klutaldbge Bernard Vs. Uganda, Supteme Coutt Crlmlnol Appeal No. 743 of 2OOl - [40] Further, the appellate Court may not interfere with the sentence imposed by a trial Court simply because it would have imposed a different sentence had it been the trial Court. See Ogalo S/O Outoura Vs Republlc [19541 24 EA CA 27O. - [a 1] The submissions by Counsel for the Appellant t]rat the trial court did not consider the mitigating factors is without merit. The trial Judge was alive to the law, regulations and principles applicable to sentencing. She applied them to the letter. The sentence given was within the prescribed range. We do not accept the Appellant's claim that the sentence was harsh and excessive in the circumstances of the case.

## **Disposition**

[42] This appeal is dismissed. The Appellant shall continue to serve the sentence imposed by the lower court.

We so order.

ih GEOFFREY KIRYABWIRE **Justice of Appeal** ilee St **MUZAMIRU MUTANGULA KIBEEDI Justice of Appeal** OSCAR JOHN KIHIKA Justice of Appeal Delivered on 10th April 2025 Page 16 of 16