[2024] UGCA 122

#### THE REPUBLIC OF UGANDA

# THE COURT OF APPEAL OF UGANDA AT KAMPALA CRIMINAL APPEAL NO. 4O5 OF 2019 [CORAM: BUTEERA, DCJ; GASHIRABAKE; KIHIKA, JJAI I(ATONGOLE LIVINGSTONE: : : : : : : : : : : : : : : : : : : : : : : : : : : : : : APPELLANT VERSUS

#### UGANDA :::::::::::: :: ::::: :::: ::::::::::FIESPONDENT

(Appeal against Judgment of the High Court at Mpigi lKatuesa Jl Ciminal Session Case No. 13 of2O18 deliuered on 2Vn September 2019)

#### JUDGMEITT OF COURT

- 1l The Appellant was convicted of the offence of Aggravated Defilement contra-ry to Section 129 (3\ (4) (a) Penal Code and sentenced to 22 years' imprisonment. The Appellant was dissatished with the decision of the trial court and frled an appeal to this court on the following grounds; - 1. The learned Judge erred in 'law and fact when she failed to adequately evaluate, appraise purported identification parade prosecution evidence alongside appellant's alibi defense evidence occasioning a miscarriage of justice thereby wrongly convicted Appellant of aggravated defrlement. - 2. The learned Judge erred in law and fact when she failed to adequately eva-luate appraise uncorroborated created circumstantial prosecution evidence alongside appellant's alibi

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defense evidence occasioning a miscarriage of justice thereby wrongly convicted Appellant of aggravated defilement.

3. The learned Judge erred in law and fact when she imposed upon Appellant harsh excessive custodial imprisonment of 22 years without deducting remand period.

#### Background

2l On the 28 /7 /2017 at about 1 :00 am, the victim was sleeping in the sitting room of Aunt's house rarith her sister, Nasuna Shadia, aged 9, Angella Mugerwa 7 years, Joan Nakawuki, 12 years and Serena 10 years. The Appellant came and pushed the door open and entered the house. When they raised an alarm, he ran away. The Appellant later came back and banged the door open and entered the house. He grabbed the victim lifted her up and held her neck and started to squeeze it. The sisters raised an alarm calling their grandmother who was sleeping at that time, but the Appellant hurriedly carried the victim to Godi's garden and defrled her. The victim later got up and returned home while cryrng and she found people gathered at home.

### Representation

3] At the hearing of the appea-l, Mr. Seith Rukundo appeared for the Appellant while the Respondent was represented by Ms. Nakafeero Fatinah. Both parties filediwritten submissions which were adopted as their legal arguments.

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#### Appellant's submissions

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- 4l Mr. Seith Rukundo submitted that the learned Judge failed to adequately eva-luate the prosecution evidence regarding the identification parade alongside the appellant's a-libi. Counsel argued that the identihcation parade was not conducted in accordance with rules and practices in police form 69 and in accordance with the principle in R VsMwango S/O Mawao 1953 EACA 29.\n addition, that PW 4 Nalwere Sylivia was not accorded opportunity to pick the suspect she had identihed on 28 l7 l2Ol7 performing a sexual act on her. - 5l Counsel relied on the decision in Nyanzi Steven Vs Uganda, SCCA No. 16 of 1998 (1999 I(ALR 68) for the proposition that where prosecution alleges evidence that the accused was elsewhere at material time, the trial court must evaluate judicially with reasons to show why one or the other is acceptable. Counsel submitted that the tria,l Judge wrongly dismissed the appellants a-libi without giving reasons. The evidence of PW4 Na-lwere Sylivia was not corroborated by any other evidence and did not positively identify the Appellant. - 6l Counsel submitted that the prosecution evidence was marred with grave inconsistencies and contradictions, which should have led to an acquittal. The evidence was only circumstantial which could easily be fabricated since there was no eye witness.


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#### Respondent's submissions

- 7] Counsel submitted that the evidence relied on by the trial Judge to convict the Appellant in this case was the evidence of PW4, PWs, PW3 ald PWl who identified the Appellant as the person who came to their room twice that night and carried away the victim and deliled her. - 8l The victim (PW4) testified on oath that she knew the Appellant prior to the day the offence was committed and properly identihed him as the one that defiled her. The victim's evidence gives an account of the period of observation, previous knowledge of the Appellant by the victim, the atailability of the Tadooba light in the room as the Appellant carried the victim away, and also the proximity between the victim and the Appellant. - 9l Counsel relied on the decision in Abdallah lYabulere Vs Uganda, SCCA NO.9/ 1978, in which the Supreme court guided that when the quality of identification is good, as for example, when the identihcation is made after a long period of observation or in satisfactory conditions by a person who knew the accused well before, a court can safely convict even though there is no other evidence to support the identihcation evidence. In the instant appeal, all the factors favoring correct identification were present and the witness remained firm even during cross exarnination confirming that the Appellant defiled her.

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- 1Ol Counsel relied on the evidence of PW1, PW3 and PW5 who all consistently corroborated each other's testimony and stated that they knew the appellant prior. He was a fish monger and was the one who entered their house that night dressed in a red shirt, black trouser and a hat and carried away the victim thus destroying the Appellant's alibi. Counsel relied on the decision in Bumbo V Uganda, SCCA NO..28l1994 for the notion that once an accused person has been positively identified during the commission of a crime, his claim that he was elsewhere must fail. Counsel submitted that the Appellant was squarely placed at the scene of crime by the prosecution evidence of identihcation and was rightty convicted by the learned trial Judge. - ¹1] Counsel retied on the Supreme Court case of Mulindwa Samuel V Uganda, SCCA NO. 22L12O14 in which the supreme court guided that failure to hold an identification parade is not fatal to the conviction of an accused where the other evidence suff,rciently places the accused at the crime scene. - 121 With regard to ground 3, counsel submitted that an appellate court should only interfere with a sentence imposed by the trial court where the sentence is illegai or unless court is satisfied that the sentence imposed by the trial judge was manifestly so excessive to amount to an injustice. Counsel conceded to the legality of sentence, the learned trial Judge having failed to deduct the remand period from the Appellant's sentence of 22 years' imprisonment.


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¹³¹With regard to severity of sentence, counsel submitted that the maximum penalty for aggravated dehlement is death and under the 3.d schedule of the Constitution (Sentencing Guidelines for Courts of Judicature) (Practice) Directions, 2013, the starting point for aggravated defilement is 35 years'imprisonment and the sentencing range is 3O years to death. Counsel argued that the sentence of 22 years meted out to the appellant was not manifestly harsh and court rightly directed itself on the law and applied it to the facts.

## Conslderation of the Appeal

- 14] We recall that this is a first appellate court and as such, the law enjoins it to review and re.evaluate the evidence as a whole, closely scrutinize it, draw its own inferences, and come to its conclusion on the matter. This duty is recognized in Rule 3O(1) (a) of the Rules of this Court, - 30. Pouter to reappraise euidence and- to take additional euidence. - (1) On ang appeal from a decision of the High Court acting in the exercise of its oiginal jurisdiction, the court maA- - (a) reappraise the euidence and draw inferences offact; and - (b) in its discretion, for suff.cient reason, take additional euidence or direct that additional evidence be taken by the tial court or bg a commlsstoner. - ¹⁵¹The cases of Pandya v R [195fl EA 336 and Kifamunte Henry v Uganda, SCCA No. 1O of L997 have also succinctly re-stated

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this principle. We have borne these principles in mind in resolving this appea-l.

- 161 The appellant argued grounds 1 and 2 concurrently and faulted the learned trial Judge for having disregarded the Appellant's alibi and convicted him of the offence of Aggravated Def,rlement. - ¹⁷¹The Appellant raised an alibi that on 27th August 2017, there was a party in the area but during day, he went to work and left at about 8:O0 pm. He then went home, slept and woke up the next day at 1:0O p.m. A policeman then came to his house and arrested him and took him to Kanoni police station on charges of defilement. The Appellant (DW1) denied knowing the victim prior to the court hearing. - 18] The prosecution relied on the evidence of the victim, who made a sworn statement, testifying ttrat the Appellant is the one that defiled her. In her testimony, she stated that; - "On 2&h Julg 2O17 theg were in the house sleeping together with Namuddu shelina, Nakawuki and Mugema when the Appellant came quietlg and pushed the door at about 5:0O a.m. When theg recognised him, he Iefi and later came back utith a hat on his head, a red shjrt and black trouser. She stated that they uere sleeping in the sitting room with a Tadboba light nearby. Theg raised an alarm and utent to the corner of the room but he came close to them. The uictim was the nearest to him so he canried her and held her in the neck. He then took her to a garden of a man called Godi, remoued her clothes and lefi her in a blouse. He got hold of his


@ Page 7 ol ¹⁴ o\oft penis put inside her vagina. She felt lot of pain but he held her neck so she couldn't shout. Afterwards, he left her there and he *ran away.*"

- 19] The victim was consistent in her evidence even during crossexamination and did not contradict herself. The evidence of the victim was corroborated by that of PW5, an 11-year-old child, who was present at the scene of crime and also positively identified the Appellant. The learned trial Judge relied on the evidence of PW1, the grandmother to the victim, to corroborate the evidence of the victim. She testified that she saw the Appellant carry the victim out of the house and also, that she knew the Appellant prior to the commission of the offence. - 20] It is settled law that the burden of disproving an alibi does not lie on the Appellant. Once an accused person raises an alibi accounting for his time at the time an offence was committed, the burden shifts to the prosecution to place the Appellant at the crime scene and prove participation of the Appellant. - 21] In the case of Androa Asenua & Another Vs Uganda [1998] UG **SC 23**, the Supreme Court of Uganda observed that: -

It is trite that by setting up an alibi, an accused person does not thereby assume the burden of proving its truth so as to raise a doubt in the prosecution case. See Ntale vs. Uganda (1968) E. A. 365; Sekitoleko vs. Uganda (1967) E. A. 531 and L. Aniseth vs. Republic (1963) E. A. 206. In the case of $R_{\text{max}}$ vs. Chemulon Wero *Olancro (1937) 4 E. A. C. A. 46, it was stated:*

"The burden on the person setting up the defence of alibi is to account for so much of the time of the transaction in question as to render it impossible as to haue committed the imputed act".

- 221 Whereas the Appellant gave an alibi, the victim squarely placed him at the scene of crime. The Appellant was known to her prior to the day as a fish monger in the village. This was corroborated by the testimony of the Appellant himself when he stated during examination in chief that he is a hsh monger. He later contradicted himself in cross examination and stated that he sells vegetables and is known by the residents of the area. - 231 We have reviewed the evidence of all the prosecution witnesses particularly the evidence of the victim and find that he was placed at the crime scene by the prosecution witnesses, most especially by the victim. The identification parade was carried out by PW3 and the identifying witness was 7-year-old Mugema Angello, one of the children present in the house on the day the offence was committed. Mugema failed to identify the Appellant during the identification parade. However, the victim was not brought to identify her assailant and yet she had properly identifred the Appellant as someone known to her prior to the commission of the offence. We would thus disregard the identification parade and hnd that the Appellant was squarely placed at the crime scene by the victim, PWI and PW5. - 231 The Supreme Court held in.. Stephen Mugume Vs Uganda Criminal Appeal No. 2O of 1995 that'

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taort

uldentlftco,tlon parad.es are, @s a practlce, held in cases uthere the suspect ls a stranger to the ultness or posslblg uthere the ultness does not know tle nolne of the suspect, In such a corse the tdenttficatlon parade ls held, as con'ectlg stated. bg the leo,nred Judge, to enable the tdenttfgtng ultness conJlrm that the person he has tdenttfted at the parade ts the sa,nrc person le had seen commlt an offence.'

241 We therefore hnd that the learned trial Judge rightly convicted the Appellant of the offence of Aggravated Defilement and we find no reason to fault the finding.

## Review of sentence

- 25] This court will only interfere with a sentence imposed by a court where the sentence is illegal or founded upon a wrong principle of law. It will equally interfere with a sentence where the trial court has not considered a material factor in the case or has imposed a sentence that is harsh and manifestly excessive in the circumstances. See Kiwalabye Bernard v Uganda, Supreme Court Criminal Appeal No. 143 of 2OOl (unreported) Livingstone Kakooza v Uganda [19941 UGSC 17, and Bashir Ssali v Uganda [2OO5] UGSC 21. - 261 The sentencing order of the trial Judge states as follows;

"The ma-rimum is death. The beginning point is 3O years. The accused is a first offender. Has asked for leniencg and has been

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on remand for 2 years. The aggravating factor is that the child was only 11 years and was grossly violated. There is need to deter this rampant offence. There is need for accused to be reformed. To achieve the above accused is sentenced to custodial sentence of 22 years from first date of remand."

27] Article 23 (8) of the Constitution of the Republic of Uganda, 1995 requires the sentencing court to consider the remand period in the following terms:

"Where a person is convicted and sentenced to a term of 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.*" [Emphasis added]

28] It is clear from the sentencing order that the learned trial Judge did not deduct the period the Appellant had spent on remand.

## **Re-sentencing**

29] Section 11 of the Judicature Act vests this court with the same powers as the trial Court in the following terms:

"11. Court of Appeal to have powers of the court of original jurisdiction.

For the purpose of hearing and determining an appeal, the Court of Appeal shall have all the powers, authority and jurisdiction vested under any written law in the court from the exercise of the original jurisdiction of which the appeal originally emanated."

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- 30] In the exercise of the above mandate, we adopt both the mitigating and aggravating fActors as set out by the trial judge in her sentencing decision. We are also alive to the principle of uniformity and consistency in sentencing which we are required to comply with. See: Sentenclng Prlnctple No.6(c) of the Constlhttlon (Sentenclng Guldellnes for Courts of Jud.lcature) Practlce Dlrectlons,2OlS - I\*gol Notlce No.8 of 2073, and Aharlkundlrq. Yustlna Vs Uganda, Supreme Court Crlmlnal Appeal No. 27 of 2075. - 311 In Taremwa Apollo Vs Uganda, Court of Appeal Criminal Appeal No. 193 of 2OL4 where the girl defiled was 8 years old, while the appellant was of the age of 29 years at the time he committed the offence and a hrst offender, this Court reduced the sentence of 2l years' imprisonment imposed by the High Court to 15 years'imprisonment. - 311 In Niasiima Gilbert Vs Uganda, Court of Appeal Criminal Appeal No. O1SO of 2O1O, the appellant was convicted of the offence of aggravated defilement and sentenced to 30 years' imprisonment by the High Court. The victim was 8 years old. On appeal, this court while reducing the sentence to 15 years' imprisonment stated, "the appellant being aged 29 Aears, a first offender, hauing spent 3 gears and four montLs on remand, ^a person with familg responsibilities and with dependents to support, ue find that a sentence of 15 gears' imprisonment is

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appropiate and is in line with sentences passed by courts in preuious cases having a semblance to this one."

## Decision

- 1. The appeal against sentence is allowed. - 2. The sentence imposed by the High Court against the appellant for the offence of aggravated defilement is hereby set aside. - 3. We consider 22 years' imprisonment as the appropriate sentence in the circumstances of this case. Taking into account the period of approximately 2 years spent by the appellant in pre-trial remand, the appellant shall serve a term of 2O years' imprisonment commencing from the date of conviction.

We So Order.

Delivered and dated this .. .w day of 2024.

RICHARD BUTEERA Deputy Chief Justice

CHRISTOPHER GASHIRABAI(E Justice ofAppeal

OSCAR JOHN KIHIKA

Justice of Appeal