[2022] UGHCCRD 35

# 5 **THE REPUBLIC OF UGANDA**

## **IN THE HIGH COURT OF UGANDA AT KABALE**

#### **CRIMINAL SESSION CASE NO.0238 OF 2019**

#### **KISORO CRB 422/2019**

**UGANDA**=============================**PROSECUTOR**

#### 10 **VERSUS**

## **KAYINAMURA ANDREW**================**ACCUSED**

#### **BEFORE: HON. JUSTICE MOSES KAZIBWE KAWUMI**

#### **JUDGMENT**

#### **Introduction.**

15 The accused was indicted for the offense of Aggravated Defilement contrary to section 129(3)(4)(c ) of the Penal Code Act. The accused denied the charge and the Prosecution had to prove all the elements of the offense.

#### **Brief facts.**

The accused is a paternal grandfather of Sharon Kamahoro (hereinafter referred to as the **"victim".** It is the Prosecution case that on 28 20 th May 2019 while the victim was alone at home in Mukingo Village, Chuho Parish in Kisoro District, the accused came to visit. He forced the victim into sexual intercourse and threatened to kill her if she revealed what he had done to any person.

The victim returned to her boarding school and informed the school matron who told the 25 Headteacher. The victim's father was called and a complaint was filed at Police. The victim was medically examined and found with tears in the genitals. The accused was subsequently arrested and charged with the offense.

#### **Defense case.**

5 In defense the accused attributes the accusation to a grudge between him and his son who is the father of the victim. The accused raised an alibi to the effect that he was at his shop in Kisoro town on the day he is alleged to have defiled the victim. The defense further contends that the accused was not a person with authority over the victim.

## **Legal representation.**

10 Grace Nabagala Ntege (CSA) appeared for the Prosecution. The accused was represented by Alice Namara and Michael Collins Mugisha on private brief.

# **Burden of proof.**

The burden to prove the charge against an accused person lies on the prosecution. This right stems from the presumption of innocence enshrined in Article 28(3)(a) of the Constitution. Any

15 conviction must be based on the strength of the prosecution case and not on the weakness of the defense case. The accused further carries no burden to prove his innocence save in a few statutory cases.

Aggravated defilement is not among the exceptions.

It is also the position of the law that where an accused raises an alibi he bears no obligation to 20 justify it. The burden lies on the Prosecution to discredit the alibi through cogent evidence placing the accused at the scene of the crime as the perpetrator of the offense he is charged with.

# **Festo Asenua & Another V Uganda. SC Criminal Appeal No.1/1998.**

Where the accused also raises a grudge as in the instant case, it is incumbent upon the court to weigh it and take it into consideration in arriving at the decision.

# 25 **Jonathan Balinda V Uganda. SC Criminal Appeal No.5/1989.**

#### **Standard of Proof.**

The standard of proof is that of proof beyond reasonable doubt. It is stated to be met once all evidence suggesting the innocence of the accused, at its best creates a mere fanciful possibility but not any probability that the accused is innocent.

# 30 **Miller V Minister of Pensions [1947]2 All ER 372.**

# 5 **Legal Elements of the Offense.**

For the prosecution to secure a conviction, the following elements must be proved to the required standard.-

- 1. That the victim was below the age of eighteen. - 2. That the accused had authority over the victim - 10 3. That a sexual act was performed on the victim - 4. That it was the accused who performed the sexual act on the victim

I will now embark on analyzing the evidence led in proof of and against each of the elements of the offense outlined herein above.

# **Proof of age.**

15 The fact that the victim was below the age of eighteen at the time the offense was allegedly committed was not contested by the defense. The victim who testified as PW1 on 5th July 2022 told court that she was 19 years old at the time. D/ASP Balaba Luke (PW2) who medically examined her on 8th July 2019 told court that she was then 16 years old.

The evidence of PW2 was corroborated by Tushabe Chance (PW6) who medically examined the

victim on 2nd 20 June 2019. The two medical reports were admitted in evidence as PEX1 and PEX2. This element of the offense was thus proved to the required standard by the Prosecution.

# **Did the accused have responsibility over the victim?**

Section 129(4)(c) of the Penal Code Act provides;-

*"Where the offender is a parent or guardian of or a person in authority over the person against* 25 *whom the offense is committed."*

It was not disputed that the accused is a grandfather of the victim. The accused (DW2) stated that he had a disagreement with the victim's father in 2010. Thathe never interacted with the victim from then since his son Kwizera Innocent (PW3) took the children to study in schools at Kampala.

5 On her part, Mary Mukamusoni (DW3) the wife of the accused told court that much as they did not have any interaction with the family of Kwizera (PW3) from 2010, his wife stayed around in Kisoro. PW3's children including the victim used to go to Kisoro for holidays.

The victim told court that the accused used to visit their home and even meet them at church. It was her testimony that she was hurt by what happened *and 'wished it had been someone else*

10 *but not her grandfather who was her friend***"** to defile her.

It was submitted for the accused that he had last interacted with the victim in 2010 and therefore had no authority over her. It was contended by the Prosecution that as a grandfather, the accused had authority but not responsibility over the victim and she respected him as such.

The Penal Code Act does not define who a parent, guardian or a person in authority over a victim 15 is in the context of Aggravated Defilement or any other offence.

My appreciation of the term *"A person in authority"* in the context of section 129 is that it refers to the relational power between a family elder and a younger relative. The accused may not have for long interacted with the victim as he contends, but as a grandfather who used to visit their home and who was respected as such, he wielded authority over his granddaughter.

20 The accused was on the basis of that relationship and the confidence the grand daughter had in him bound to act in good faith towards her, could discipline her or order her to do what her parents would in goodfaith tell her to do. It has nothing to do with the alleged long spell of lack of interaction or meeting the daily needs of the victim.

In **Uganda V Fualwak [2018]UGHCRD 110** Justice Mubiru Stephen described the "authority" 25 to reside in ;-

*"any person acting in loco parentis to the victim, or any person responsible for the education, supervision or welfare of the child, and persons in a fiduciary relationship with the child characterized by a one sided distribution of power inherent in the relationship, in which there is a special confidence reposed in one who in equity and good conscience is bound to act in good* 30 *faith with regard to the interests of the child reposing the confidence."*

In the context of the grandfather/granddaughter relationship, the accused had authority over the victim. This ingredient of the offense was proved to the required standard by the prosecution.

## 5 **Proof of a sexual act.**

## **Section 129(7) of the Penal Code** Act defines a **"sexual act"** to mean:-

**b)** *The unlawful use of any object or organ by a person on another person's sexual organ."*

- The victim stated that on 28 10 th May 2019 she was alone at home preparing to go to school. The accused knocked on the front door as the victim who had just finished bathing had a "lesu" tied around her body. She heard the voice and opened the door, greeted the accused and gave him a seat before returning to her bedroom separated by a curtain from the sitting room. - The victim heard the accused closing the door. She asked him why he was doing so as she peeped 15 through the curtain but he did not reply. The accused suddenly pushed the victim on to the bed and defiled her. She tried to make an alarm but the accused grabbed her neck and threatened to kill her. The accused further threatened to kill the victim if she told anybody of what had happened.

The victim saw blood oozing from her privates and padded herself before getting a motorcycle that took her to the bus park. On the 29 20 th May 2019, Kwizera (PW3) took her to school. It was her evidence that she had pain in the lower abdomen but could not tell anyone believing she was about to start her monthly periods until she saw pus on 1st June 2019.

She was then prompted to ask for a phone to call her father but was denied one by the Head teacher and the school nurse. The victim then told the school matron what had transpired on 28th 25 May 2019. The victim was taken to a clinic at Kikonge Village and the nurse referred her to

Kikonge Police Post under Mityana Police District.

A PF3 was generated referring the victim to Mulago hospital but there was no one to attend to her on 2nd June 2019. PW3 told court that a medical worker at Mulago hospital advised him to take the victim to either SURE HOUSE or to ELE'ANNA CLINIC. PW3 opted for the latter clinic. The PF3 was returned to Mityana Police and the file was on 11th 30 June 2019 sent to Kisoro Police Station where the offence was allegedly committed.

**a) "***Penetration of the vagina, mouth or anus, however slight of any person by a sexual organ or*

5 Police at Kisoro wanted a fresh examination of the victim done at Kisoro hospital but PW3 rejected it since he had learnt that the accused had arranged to have the findings compromised. He left Kisoro and reported to Police CID Headquarters leading to a second examination of the victim by D/ASP Balaba Luke (PW2) on8th July 2019.

Counsel for the accused contested the occurrence of a sexual act. It is contended that the victim 10 told no one including her father who took her to school about it. That Tushabe (PW6) who examined her on 2nd June 2019 saw no pus or body injuries except the raptured hymen and tears around the vaginal muscles. PW6 did not also show when the injuries were occasioned to the victim.

PW2 is also stated to have told court that the injuries were *"around the mouth of the vagina*" 15 which contrasted with the findings of PW6. The court was urged to disbelieve the evidence of the occurrence of a sexual act or to conclude that the tears seen by PW2 and PW6 could have resulted from another sexual encounter but not on 28 th May 2019.

Prosecution observed that the best evidence of a sexual act is that of the victim which requires no corroboration. It was argued that the findings of PW2 and PW6 point to the occurrence of a 20 sexual act.

I have perused the record of PW2's testimony given on 5th July 2022 and seen no statement about the location of the genital injuries attributed to himby Counsel for the accused. PW2's report and his evidence in court was that he found *"healed tears at 6.00 and 3.00 O'clock ".*PW2 stated that basing on the given history the tears were approximately two months old but the PF3 25 did not require him to state when the injuries were occasioned to the victim*.*

On the other hand, PW6 who examined the victim on 2nd June 2019 observed *"the hymen is raptured. There are tears around the vaginal muscles. I could not tell the exact date of the injuries but since they were fresh, It was recent."* I find no contradiction between the two professional witnesses . I also find it imperative to note that a victim need not have got injuries

30 for the occurrence of a sexual act to be proved. Any slight penetration amounts to a sexual act under section 129(7) of the Penal Code Act.

The defense introduced the evidence of Dr. Bwambale Phenehas (DW1) a Police Surgeon in charge of medical-legal services for Kampala North Metropolitan Police in which Ele'Anna 5 Clinic is located. The defense called DW1 to testify about the competence of PW6 in carrying out the examination on the victim and the competence of the Clinic to do medical-legal work.

DW1 whom I found to be a very truthful, consistent and professional witness told court that he got a complaint from Mr. Mugisha who was Counsel for the accused. DW1 made an inquiry and established that Ele'Anna Clinic was one of the Partners the Police uses for medical-legal

10 work. DW1 further established that PW6 had the requisite qualifications to do the work. On an inquiry from the court, PW6 stated that she had personally handled about 70 cases referred to the Clinic by Police.

All DW1 could not establish was whether PW6 had been licensed to practice in 2019. DW1 remarked that Ele'Anna Clinic had always done good work for the Police. DW1 was not 15 introduced as an expert witness for a Professional opinion on the findings in the reports by PW2 and PW6. To say the least this renders all arguments about the failure to observe pus or the age of the observed injuries merely speculative since they are devoid of medical evidence to back them.

It is trite that the best evidence of penetration in sexual offences is that of the victim and it is 20 proved by direct or other evidence. It is also firmly established that corroboration is not a requirement in sexual offences and has since been rendered unconstitutional by the Supreme Court.

# **Mpambara V Uganda SC Criminal AppeNo.002/2018;Hussein Bassita V Uganda. SC Criminal Appeal No.35/1995;Uganda V KalemaDavid. HC Criminal Case** 25 **No.165/2015Mukungu V R(2003)2EALR(K).**

At 16 years the victim was old enough to appreciate what a sexual act is. She consistently testified to what happened to her amidst sobs and withstood the vigorous cross examination by Counsel for the accused. I observed her throughout her testimony and have no doubt that she was a witness of truth.

30 The medical reports by PW2 and PW6 further corroborated the victim's evidence onthe occurrence of a sexual act. The failure by the victim to tell her mother or father about the incident immediately is no justification to disregard her undisturbed evidence. It was her 5 evidence that she feared that her grandfather would kill her and it was after seeing pus that she was prompted to speak out.

I find that a sexual act was occasioned to the victim on 28th May 2019.

#### **Proof of participation.**

Kwizera (PW3) the Victim's father told court that he had no grudge against his father who had 10 before the incident given him a cow, land and bought him motorcycles on two occasions. PW3 further narrated that on two occasions the accused rescued him from Police custody at Kisoro in 2004 and Dubai in 2008.

PW3 stated that he did not frame his father of the offense he is charged with in order to sell the land he had donated to him on condition that he should not sell it. PW3 told court that he learnt

of the defilement on the 1st 15 June 2019 when the Victim's Head teacher called him about his daughter's health and the girl narrated the events of 28th May to him.

It was his evidence that when the file was forwarded to Kisoro Police station a one Colonel Kaita called a meeting at Kisoro Tourist Hotel on 13th June 2019. The meeting urged PW3 to have the matter resolved outside the Law since he and the accused are members of the same family but he

20 declined.

Another meeting attended by fewer people was called on 14th June 2019. PW3 claims to have been offered a plot of land valued at Shillings 25,000,000/= and transport refund of Shillings 2,000,000/= by Mukamusoni (DW3) but he declined the offer. PW3 stated that he was forced to relocate his children from Kisoro after the incident because he feared that they would be 25 killed. PW5 re-echoed the threats to the family of PW3 in her evidence in court.

The accused in his defense stated that he used to assist PW3 until 2010 when the latter went to their home demanding to be given land. A meeting was called. PW3 apologized and was forgiven by the accused. The accused claimed to have given land to PW3 on condition that he did not sell it but in 2019 he heard that PW3 had sold the land. PW3 concedes that he sold the 30 land donated to him by the accused but after the defilement incident.

It was the evidence of the accused that PW3 initiated the meeting at Kisoro Tourist Hotel in which he demanded shillings 25,000,000/= and 2,000,000/= as transport refund but the accused

- 5 declined to give him the money. In 2021 PW3 is further said to have arranged a meeting attended by the accused, the Sub-County Chief and Mukamusoni (DW3) at Kabale. In the meeting PW3 is said to have asked for Shillings 20,000,000/ for himself and 10,000,000/- for his Lawyer but the accused refused to give in. - I note that PW3 is alleged to have asked for money to have the charges dropped but Mukankusi 10 (DW3) did not mention the two meetings in her evidence. DW3 did not also dispute the allegation that she offered land and money to PW3 to drop the charge against the accused. I find this to imply that it was the truth otherwise why would DW3 make the offer if the accused was that innocent?

I further find it strange that PW3 would involve such a big number of people to black mail his 15 father to have charges withdrawn. Even then no Police report was made about the two attempts at black mail. This lends credence to the version on the meeting put across by the victim's father as opposed to that of the accused.

The victim was the sole identifying witness which calls for the court to warn itself and the assessors of the danger of basing a conviction on such evidence. The court has also to firmly 20 establish whether there were factors enabling proper identification of the accused by the victim so as to rule out any possibility of a mistaken identity.

It is not denied that the victim knew the accused well and even identified him by voice when he visited. It was around 9.00am which connotes there was enough light to aid visibility. The victim was not challenged on the evidence that she greeted and offered the accused a seat before 25 retreating to the other side of the curtain where her bed was to dress up.

Detective Sergeant Apio (PW5) from CID Headquarters visited the scene and confirmed in her sketch map admitted as PEX3 that the sitting room was separated from the victim's bed by a curtain. The accused and the victim were thus near each other. The time spent together was long enough to have enabled proper identification of the accused by the victim.

30 It is my finding that the accused was properly identified by the victim as the person who defiled her on 28th May 2019.

#### **Abdallah Nabulere V Uganda[1979]HCB 76;Uganda V Mukasa [1978] HCB 87.**

5 It is trite to state that when the Prosecution adduces cogent evidence placing the accused at the scene of crime as the perpetrator of the offense he is charged with, the alibi mounted as a defense crumbles.

# **Uganda V Dusman Sabuni {1979]HCB 1;Alfred Bumbo V Uganda. SC Criminal Appeal No.28/2004.**

- 10 The court is required to inquire into the grudge raised by the accused as the cause of his arrest and indictment. It was the submission of counsel for the accused that the victim was used by PW3 to further his grudge against his father. Interestingly the accused told court that he forgave his son after the 2010 attempted attack on him. Nteziryayo (DW4) who authored a settlement agreement confirmed it. There was no other evidence led to show any other clash between the - 15 accused and PW3.

Even then, the victim was never stated to have carried a grudge with the accused before 28th May 2019. At her age she could not have been used to frame her grandfather whom she referred to as having been her friend before the incident.

In my assessment of the evidence, PW3 did not have to wait for 9 years to have his father 20 imprisoned in order to sell the land he had given him. The sequence of events did not also support the alleged extension of the grudge byPW3. Did PW3 have to wait for the victim to report to school, tell the school authorities and have the case originated from Mityana Police Station in order to cause the arrest of the accused?

I also found credence in the version of evidence by PW3 when he stated that a medical worker at

25 Mulago told him to either take the victim to Sure House on Bombo Road or Ele'Anna Clinic. PW3 was emphatic that he did not know anybody at the Clinic. PW6 stated that it was her first time to see PW3 and the Victim and this was not disproved.

The victim herself testified to the accused having been a friend. PW3 told court that she found her in a sad and disheveled state when he was called to school by the Headteacher. Nanteza

(PW4) the school matron who received the victim on 29 30 th May 2019 recalled that she was not happy and was unusually quiet until she reported the incident of the defilement to her after two days.

- 5 PW5 who investigated the case at CID Headquarters told court that on the initial attempt to interview the victim on 8th July 2019 she was crying, withdrawn and the father appeared traumatized. The court also observed the victim and the father crying when asked about the incident. Could both have been acting to date? I do not believe so given the consistency in their narrations and in answering questions put to them in cross examination. - 10 I was advised by the Lady and Gentleman Assessors to convict the accused. I find no reason to depart from their opinion. I find the accused guilty of Aggravated Defilement contrary to section 129(3)(4)(C) of the Penal Code Act. I accordingly convict him.

15 ...............................

**Moses KazibweKawumi Judge 8 th August 2022**

### **SENTENCE AND REASONS FOR THE SENTENCE.**

#### **SUBMISSIONS IN AGGRAVATION BY THE PROSECUTION.**

- 25 1. The Convict was found guilty and convicted of the offense of Aggravated defilement contrary to section 129(3) and 4(C) of the Penal Code Act. - 2. The victim of the defilement is a granddaughter of the convict which fact also amounted to Incest under the Law. - 3. The convict is a first offender but committed an act of sexual violence. - 30 4. The convict further threatened more violence against the victim if she shared her plight to any person.

- 5 5. The convict was a person with authority over the victim who breached the family trust by violating the victim. - 6. The Convict remained unrepentant and instead destroyed the victim and her father's image in the community by labelling them as liars who framed him of the offense he was found guilty of. - 10 7. The conduct of the convict led to the victim being placed under witness protection, she cannot be safe in Kisoro where she grew up and called home. The victim and her father were by the acts of the convict forced to relocate to Kampala. - 8. Prosecution suggested a sentence of 30 years and an order for compensation for the physical and psychological injuries occasioned to the victim by the convict. Uganda 15 Shillings 100,000,000/= was suggested as appropriate.

#### **SUBMISSIONS IN MITIGATION FOR THE CONVICT.**

- 1. The Convict is a first offender. - 2. The convict is the sole bread winner of a family consisting of biological and orphaned grand children under his care. - 20 3. The convict is 68 years old,remorseful and capable of reform. - 4. Court should consider the consistency principle in sentencing. In **Anguyo V Uganda CACA No.38/2014** and **Ntambara Fred V Uganda CACA No.34/2015** in which the court of Appeal confirmed a sentence of 14 years. - 5. Counsel also cited **Uganda V Twinamatsiko CACA No.073/2010** in which a sentence 25 of 26 years was given by the court. - **ALLOCTUS BY THE CONVICT.**

I' am an elderly man suffering from High Blood Pressure and Diabetes with biological children and dependents in school. I often collapse and become unconscious in the cells. I pray for a lenient sentence that I can serve and return to my family.

#### 30 **SENTENCE.**

I have considered the submissions of counsel for both parties and the allocutus by the convict. Defilement of relatives in a family setting is an offence on the increase that courts must strongly come out to condemn through handing out sentences that send a warning to would be offenders.

5 The Convict did not show any remorse all through the trial and persistently portrayed the victim as a liar who with her father framed him of the offense. The threats to the victim's family further compelled them to shift from the family home and for the victim to be placed under a Witness Protection Program.

What I consider to be factors in mitigation of the sentence are that the convict is fairly elderly 10 and has a family to care for. The convict is also a first offender not enjoying good health given the ailments he enumerated to court though not supported with medical evidence.

The maximum penalty for the offence is death. The offense was however committed in circumstances that do not call for death as an appropriate penalty. It does not qualify as one of the rarest of the rare cases. Imprisonment for the natural life of the convict is not also appropriate 15 given the circumstances in which the offense was considered.

The court will consider a custodial sentence based on The (Sentencing Guidelines for the Courts of Judicature)(Practice) Directions,2013. The Court will also consider case law with almost similar facts to determine an appropriate sentence in emphasizing the principles of uniformity and consistency in sentencing.

20 The Constitution (Sentencing Guidelines for the Courts of Judicature) (Practice) Directions,2013 in the 3rd schedule of Part 1 provide for a sentencing range of 30 years and a starting point of 35 years to be adjusted by the court basing on the mitigating and aggravating factors.

In **LivingstoneSewanyana V Uganda. SCCA No.019/2006**, the Court confirmed a sentence of 18 years where the appellant defiled his own daughter. In **Kasibante Moses V Uganda**

25 **CACANo.068/2015** the Court confirmed a sentence of 20 years where the victim was 7 years and the convict had pleaded guilty.

Having taken into account all the aggravating and mitigating factors, the period the convict spent on remand prior to being released on bail and during the trial,I sentence the convict to 20 years. The period shall be computed from 15th August 2020.

30 I will not exercise the discretion of the court to order for the compensation of the victim.

The Convict has a right to appeal against both the conviction and the sentence.

## Moses Kazibwe Kawumi

Judge

th August 2022