[2025] UGCA 96

#### THE REPUBLIC OF UGANDA

#### IN THE COURT OF APPEAL OF UGANDA AT MBATE

Coro m : M ulyog onja,Ti bu lyo &Ko zibwe Kow u m i,JJA

#### CRIMINAT APPEAT NO. OO35 OF 2019

#### BETWEEN

# 10 NABUNGA JUMA APPELLANT

AND

UGANDA RESPONDENT

(An oppeal ogoinst the decision of Todeo Asiimwe, J delivered on 28th November 2018 in Mbole Criminal Session Cose No.16 of 2015)

## JUDGMENT

20 The Appellant was indicted with the offence of Aggravated Defilement contrary to section 129(3) and (4) ofthe Penal Code Act. He was convicted and sentenced to 29 years, 9 months' imprisonment on 28th December 20L8.

#### Background

- 2s The facts accepted by the trial Judge are that the Appellant was a building mason in Nabweya Parish, Namanyonyi Sub County in Mbale District. On 1't February 2015, the Appellant found a four year old girl, hereinafter referred to as "NA," playing with her friends. The Appellant took NA to an incomplete house he was constructing and defiled her. He there after gave - 30 her a sweet and biscuits warning her not to inform anyone about what had ha ppened.

- ⁵ Later in the evening, NA told her mother that she felt pain when passing urine which prompted the mother to check her private parts. She found ^a discharge upon which NA revealed what the Appellant had done to her. The appellant was arrested, charged and convicted upon which he lodged an appeal against both the conviction and the sentence. - 10

## Grounds of Appeal

- 1. The learned trial Judge erred in law and fact when he ignored inconsistencies, contradictions and departures in the prosecution case and evidence on record and convicted the appellant. - 2. The trial Judge erred in law and fact when he dismissed the appellant's defence of alibi. - 3. ln the alternative, the learned trial Judge erred in law and fact when he sentenced the appellant to 34 years'imprisonment, which sentence was harsh and excessive in the circumstances.

It was the Appellant's prayer that the conviction should be set aside and the sentence quashed so that he is immediately released from custody.

#### Representation

At the hearing of the appeal on 12th March 2025, the Appellant was represented by Ms. Agnes Wazemwa. The Respondent was represented by Mr. Oola Sam, a Senior Assistant DPP, assisted by Mr. Akandekako Abraham, a State Attorney in the Office of the Director, Public

Prosecutions. 30

> Counsel for the parties filed written submissions as directed by the Registrar which were adopted as their final arguments in the appeal. On application by Counsel for the appellant under Rule 5 of the Court of Appeal Rules, the court validated the Memorandum of Appeal which had

been filed out of time. 35

# s Duty of the Court

This being a first appeal, the Appellant is entitled to have the Appellate court's own consideration and views of the evidence as a whole and its own decision thereon. The court must then make up its own mind, not disregarding the judgment appealed from but carefully weighing and 10 considering it. See Pandya v R (1957) EA 336; Kifamunte Henry V Uganda, SCCA No.10 ol L997.

#### Ground of Appeal No.1.

15 The learned trial Judge erred in law and fact when he ignored inconsistencies, contradictions and departures in the Prosecution case and evidence on record and convicted the appellant.

#### Submissions for the Appellant

Counsel for the Appellant submitted that the Prosecution departed from the case pleaded and disclosed in the case summary which the trial court should have considered in favour of the Appellant. 20

It was submitted that NA's mother was stated in the lndictment to have gone to her mother's home on the day NA was allegedly defiled and returned home in the evening. ln court however, Natoozo Robinah (the mother testifying as PW1) stated that she spent the day at home, cooked lunch and even served the Appellant with food as a neighbour. 25

It was further submitted that the statement in the summary of the case was that NA identified the Appellant as her assailant when he was passing by their home. PW1 is however alleged to have told court that NA told her that it was Juma who sent her for water and later defiled her behind the house. 30

- Counsel for the Appellant submitted on alleged contradictions and inconsistencies in the Prosecution evidence that were ignored by the court. lt was argued that while PW1 is stated to have checked NA's private parts in the company of a neighbour, her evidence in court was that she did it alone. lt was also argued that while the medical evidence was to the - effect that NA was sexually assaulted using a male organ, her evidence was that the appellant used fingers on her private parts. 10

Counselfor the Appellant relying on Wepukhulu Nyunguli V Uganda, SCCA No.21 of 2001 submitted that the contradictions in the Prosecution case and evidence were deliberate lies intended to frame the Appellant on illegal charges which created reasonable doubt about the Appellant's guilt.

## Submissions for the Respondent

For the respondent, it was submitted that a summary of the case is not evidence and any mistakes in it cannot be visited on the witness. lt was further argued that the Appellant had an opportunity to cross examine PW1 and challenge her evidence if he felt that the alleged departure was material. Counsel for the Respondent submitted that the Appellant did not suffer any miscarriage of justice by reason of the alleged departure from 20

the case summary. 25

Relating to the alleged contradiction between the medical evidence and NA who testified as PW2 about the alleged sexual act, it was argued for the Respondent that it was immaterial. A sexual act is completed by penetration with a sexual organ or an unlawful use of any object and the

use of fingers amounted to commission of the offence.

The Court was urged to disregard the submissions and dismiss the first ground of appeal.

#### 5 Consideration of ground 1

The gist of the complaint in this ground is that the Prosecution departed from the contents of the summary of the case which according to Counsel for the appellant amounted to a departure and inconsistency in evidence.

The Respondent argued that any mistakes in the summary of evidence cannot be visited on a witness and the appellant had the opportunity to raise whatever complaints he had during cross examination. A perusal of the summary of evidence reveals that NA's mother is stated to have left NA at her grandmother's home since she wanted to go somewhere for ^a burial ceremony. 10 15

Counsel for the Appellant did not however during the trial raise this alleged contradiction about where PW1 was on that day during cross examination. The questions asked were about the food prepared by PW1 for the appellant on the day he allegedly defiled NA and how far her home was from that of the Appellant.

We further noted that all issues raised as contradictions in the Prosecution case were not asked of PW1 or NA during cross examination yet the Prosecution had disclosed its evidence to the appellant. We hold the view that cross examination was the opportune time to raise those issues. The answers to the questions raised would have assisted the trial court to determination the veracity of the Prosecution evidence as adduced by PWl and PW2. 25

We however wish to note that a summary of the case attached to an lndictment does not amount to evidence based on which a claim to ^a contradiction against other evidence can be raised. A summary of the case is a merely a pointer to the nature of the case the Prosecution intends to bring against the accused person.

#### ⁵ Section 2 (1) (d) of the Evidence Act (CAP. 8) defines evidence as;

"the meons by which any alleged motter of foct, the truth of which is submitted to investigotion, is proved or disproved and includes statements by occused persons, admissions, judiciol notice, presumptions of low, and ocular observation by the Court in its judiciol copocity"

A summary of the case is not prepared by a witness orthe accused and its contents cannot be used as evidence. lts contents cannot override evidence given in court and subjected to cross examination or to a Police statement attributed to the witness against which he/she can be cross examined in court.

Section 158 of the Magistrates Courts Act (CAP. 19) relates to committal for trial by the High Court and it provides as follows; -

"168, Committal for trial by High Court 20

> (L) When o person is charged in o mogistrote's court with on offence to be tried by the High Court, the Director of Public Prosecutions sholl file in the magistrote's court on indictment and a summory of the case signed by him or her or by on officer authorised by him or her in that behalf acting in occordance with his or her general or speciol instructions.

(2) The summory of the case referred to in subsection (7) sholl contoin such particulors os ore necessory to give the occused person reosonoble informotion os to the noture of the offence with which he or she is charged."

6of15

- ⁵ We are therefore of the view that the submissions based on the alleged inconsistency between the summary of the case and the evidence in court would have no place both during the trial and at the appellate stage. The appellants claim is further weakened by the fact that no complaint against the Prosecution's failure to disclose its evidence was raised during the trial. - 10

A perusal of the record of proceedings however reveals that PWL and PW2 were consistent in their evidence about their knowledge of the Appellant. PW1 stated that the Appellant's home was only two houses away from hers which supports the contention that she knew the Appellant. PWI- was further not challenged on the evidence that the Appellant was constructing a house in the neighbourhood and that is how they came to share lunch since he was in their compound at the time she served lunch.

PW1 gave undisturbed evidence to the effect that he saw the Appellant sending NA to the shop but did not see her thereafter until she was told that the Appellant had taken her to the house he was constructing. NA on her part corroborated the evidence of PWl- when she stated that the Appellant sent her for water from the shop, took her to an incomplete house in the banana plantation and defiled her. 20

NA even identified the appellant in court as"the man who put fingers in my private parts, lt was a bad thing ond that's why I call him o bod mon." The evidence of PW1 and PW2 was not destroyed during cross examination. We therefore find no grounds to fault the trial Judge for relying on the evidence of the two witnesses to convict the Appellant.

Counsel for the Appellant further raised an argument to the effect that there was a contradiction about how the Appellant was arrested. PWl told court that the appellant took himself to Police to find out whether they were aware of anything or not and the Police arrested him.

- 5 The appellant in his own defence confirmed that he took himself to Police since people advised him to go and disprove the rumours in the village the he had defiled NA. We find no contradiction in the two versions of evidence by PW1 and the Appellant. - We also find it imperative to comment on the alleged contradiction in the evidence relating to the sexual act occasioned to NA. lt was stated in the medical report admitted by consent, under section 66 of the Trial on lndictments Act, that the probable cause of the injuries on NA's genitals was penile penetration. NA however told court that "the oppellant squotted while I was stonding, and then put his fingers in my susu and 10 15

started shaking it inside"

We are alive to the fact that NA was four years old at the time the alleged incident happened and may not be expected to have carefully observed what took place. The posture of the Appellant and NA during the sexual act as she described in court, would also have led her to believe that fingers were used to commit the offence. 20

We noted from the proceedings that NA's evidence relating to the way in which the sexual act was committed was not challenged at all in cross examination and the presumption is that it was true. lt has been held by various courts that an omission or neglect to challenge the evidence in chief on a material or essential point by cross examination would lead to an inference that the evidence is accepted, subject to it being assailed as inherently incredible or possibly untrue. See James Sawoabiri & Another V Uganda, SCCA No.5/1990; Karakire Steven v Uganda [2019] UGCA 11; Kayibanda v Uganda (1975) HCB 253. 30 25 ⁵ What we however find crucial to note is that a sexual act was committed within the description of Section 729 (7l'(b) of the Pena I Code Act [Ca p 128] which defines a sexual act to mean;

"129. Defilement of persons under eighteen yeors of oge

(7) ln this section-

"sexual oct" meons-

(o)penetration of the vogina, mouth or onLts, however slight, of ony person by o sexual orgon;

(b)the unlowful use of ony object or organ by o person on onother person's sexuol orgon;

"sexuol orgon" meons o vagina or a penis,

The biological definition of an organ is that it is; -

"a collection of tissue thot structurolly forms a functional unit that specificolly performs o porticulor function."

Though not organs, fingers are part of the body and according to the victim, they were used to commit the sexual act by the Appellant, which leads to the same result.

We find no merit in the first ground of appeal.

## ⁵ Ground of Appeal No.2

The trial Judge erred in law and fact when he dismissed the appellant's defence of alibi.

It was submitted that the Appellant was with Wandago Hussein (DW2) constructing a Mosque at Kasanvu Village on the day he is alleged to have defiled NA. lt was also the evidence of the Appellant that he was served lunch by Nagaga Asumini (DW3) at about 2.30 pm after which they retired from the assignment. 10

- Counsel argued that the Prosecution failed to disprove the alibi but the trial Judge ignored it to find in favour of the Appellant on that aspect. lt was further argued that the trial Judge ought to have considered that the children who played with NAcould have inflicted the sexual assaulton her but not the appellant. 15 - 20

Counsel cited Bogere Moses & Another v Uganda [1998] UGSC 22 for the proposition that an accused has no obligation to justify an alibi he raises as a defence.

For the Respondent, it was submitted that the trial Judge evaluated the evidence which placed the Appellant at the scene of the alleged defilement. The Appellant was known to both PW1 and NA who according to him had no grudge of any sort against him. lt was further pointed out that no one could account for the whereabouts of the appellant after 2.30 pm. 25 30

It was submitted that the allegation that children playing with NA could have defiled her was speculative and the trial Judge correctly believed the Prosecution evidence which disproved the alibi fronted by the appellant.

## ⁵ Consideration

The law relating to alibis as a defence is well settled. Where an accused raises an alibi as a defence, he/she has no obligation to prove it. The onus falls on the Prosecution to destroy it with credible evidence placing the accused person at the scene of crime as the perpetrator of the offence he/she is charged with. See Dusman SabuniV Uganda (1981) HCB 1

It is also trite to state that an alibi must be raised at the earliest opportunity the accused gets so that it is investigated to mitigate any presumption that it was made up in the course of the trial. We noted from the cross examination of both PW1 and NA that no questions relating to the whereabouts of the Appellant were raised in an attempt to discredit the allegation about his presence at the home of PW1 on the day in question.

The Appellant had no obligation to prove his innocence at the trial, but we noted that his evidence relating to his prior knowledge of PW1 and NA was contradictory. Whereas he denied knowing them at all, he knew the distance from their home to his home. lt was also his evidence that he knew NA's grandmother against whom he had a grudge yet the family stayed in the same location. 20

It was also the evidence of the Appellant that his family and friends protested at the Police Station when they learnt of his arrest yet he was known to be innocent. On the contrary both DW2 and DW3 who claimed to have been with him denied the evidence about protesting at the Police Station. DW2 and DW3 could not also account for the movements of the Appellant when he allegedly left the building site at 2.30 pm.

We already noted and held that the trial Court correctly convicted the Appellant on the direct evidence of PW1 and NA who saw the Appellant at their home on the day he defiled NA.

- The evidence of PW1 and NA destroyed the alibi raised by the Appellant to the effect that he was at a building site somewhere else on the day NA was defiled. 5 - We further note that the trial Judge had the opportunity to observe all witnesses at the trial and remarked about the lies told by DW2 and DW3 about how each of them was related to the Appellant. The two witnesses had come to testify about the presence of the Appellant at a building site away from the home of PW1 on the day NA was defiled. 10 - The trial Judge also observed the two witnesses for the Prosecution and noted their credibility. The conclusion of the trial Judge based on the demeanour of witnesses must be glven its due weight and we find no grounds to depart from his observations. See Flora Mbambu & Another V Uganda (1979) HCB 47 15 - 20

We thus find and hold that the trial Judge correctly disregarded the defence of alibi raised by the appellant. We therefore find no merit in the second ground of appeal.

Ground No.3 25

> ln the alternative, the learned trial Judge erred in law and fact when he sentenced the appellant to 34 years' imprisonment, which sentence was harsh and excessive in the circumstances.

It was argued that the trial Judge did not consider the mitigating factors which should have led to a lesser sentence for the appellant who was ^a first time offender and a family man. 30

Counsel argued that the 34 years' imprisonment was harsh and excessive in the circumstances of the case. The case of Kiwalabye Bernard v Uganda

l2024l UGCA 254 was cited for the proposition that an appellate court is 35

⁵ not to interfere with a sentence imposed by the trial court unless the exercise of the discretion results in a sentence that is manifestly excessive or so low as to amount to a miscarriage of justice.

Counsel urged the court to allow the appeal and quash the sentence imposed by the trial court. 10

Counsel for the respondent on the other hand argued that the trial Judge weighed all the mitigating and aggravating factors before sentencing the appellant. The appellant was 36 years old and capable of being a father to his victim whom he instead defiled argued Counsel for the Respondent.

The Court was referred to Shazilly Adbullah V Uganda 120231UGCA 221 in which the Appellant was convicted of Aggravated defilement and sentenced to 32 years when the victim was 12 years old and it was upheld on appeal.

Counsel further referenced Byaruhanga Odi v Uganda l2O23l UGCA 231 where a sentenced to 37 years 'imprisonment was upheld on appeal. The Court was urged to dismiss the appeal and uphold the sentence imposed by the trial court.

## Consideration

We noted from the sentencing record that the trial Judge considered the aggravating and mitigating factors before arriving at the sentence which was 33 years and not 34 as stated in this ground of appeal.

The aggravating factors were that NA was four years old and subjected to a trauma for all her life. The Court however noted that the Appellant was a first time offender who was apologetic and had family responsibilities.

⁵ The court noted that a custodial punishment was appropriate to the circumstances of the case and further noted the sentencing range of 30 years in the Sentencing Guidelines and used it as a starting point which he raised to 33 years basing on the aggravating factors. The court then deducted 3 years and 3 months the appellant had spent on remand and sentenced him to 29 years and 9 months from 28th November 2018. 10

ln resolving this ground of appeal. we are guided by the principles set out in various authorities to the effect that the appellate court will not interfere with a sentence imposed by the trial court in the exercise of its discretion unless it results in the sentence being manifestly excessive or based on wrong principles or where the court ignored some material factors. See Kiwalabye Bernard V Uganda (supra); Kamya Johnson Wavamunno v Uganda [2002] UGSC 46; Kyalimpa Edward v Uganda [2008] UGSC 8. 15

It was held in Aharikundira Yustina v Uganda [2018] UGSC 49 that the appellant claiming that the sentence was harsh must demonstrate that the sentence imposed was manifestly excessive in the sense that it exceeded the permissible range.

The appellant argued that the imposed sentence was outside the range of sentences imposed in cases similar to the one under consideration. We have however looked at cases under which a similar offence was committed and these include; -

ln Bukenya Joseph v Uganda [2010] UGCA 32 this Court found that ^a sentence of life imprisonment was appropriate where the victim of defilement was 6 years old.

- ⁵ ln Bashir Burahuri v Uganda 120231 UGCA 254, this court upheld a sentence of 40 years for aggravated defilement of a 1-2-year-old victim. - ln Seruyange Yuda Tadeo v Uganda l2022l UGCA 103 the appellant was sentenced to 33 years'imprisonment for defiling a 9-year-old girl, upon appealto this Court, the sentence was reduced to 27 years'imprisonment. 10

ln Twesigye Esau v Uganda 120221 UGCA 237 this Court reduced the sentenced imposed by the trial Court from 32 years' imprisonment to 25 years' imprisonment as the appropriate sentence. 15

ln male Abubakaliv Uganda 120231UGCA 216 the appellant was convicted of aggravated defilement and sentenced lo 22 years' imprisonment. The victim was 1-2 years old. On appeal, the appeal was dismissed on ground that the sentence was appropriate.

ln Mutebi Ronald v Uganda l2022l UGCA 240 this Court considered ²³ year's imprisonment to be appropriate considering the fact that the victim was 6 years old.

ln Geoffrey Okello v Uganda l20l7l UGSC 37, it was held by the supreme Court that the sentence of 22 years handed down by the trial Court and upheld by this Court was not illegal since it was less than the death sentence which is the maximum sentence provided for the offence of

aggravated defilement. 30

> Guided by the necessity for parity in sentencing and very much alive to the fact that no two criminal cases can be exactly alike, we find the sentence of 33 years imposed by the trial Judge rather harsh.

- ⁵ We have invoked our powers under Section 11 of the Judicature Act to set aside the sentence and re-sentence the appellant afresh considering the same mitigating and aggravating factors considered by the trial Judge. - Considering all the aggravating and mitigating factors we re-sentence the appellant to 22 years. We deduct the 3 years and 3 months he spent on remand. The appellant shall serve 18 years and 9 months from 28th 10 November 2018, the date of sentencing.

-p Dated and delivered at Kampala this ..t-b-...day of 2025.

lrene Mulyago

c\

Justice of Appea!

M rgaret Tibulya Justice of Appeal

@\_

Moses Kazibwe Kawumi Justice of Appeal

25