Buteraba Stefano v Uganda (Criminal Appeal No. 0071 of 2010) [2025] UGCA 129 (8 May 2025)

## THE REPUBLIC OF UGANDA

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

[Coram; C. Gashirabake, A. Mugenyi & J. M. Musisi, JJA]

### CRIMINAL APPEAL NO.007l of 2010

BUTERABA STEFANO. APPELLANT

### VERSUS

UGANDA RESPONDENT

(Arisingfrom the Judgment of the High Court of Uganda at Mpigi (Elizabeth lbanda Nahamya, J), Criminal Case No. 0114 of 2009, delivered on the I lth Moy 2010)

### JUDGMENT OF THE COURT

- <sup>I</sup>I ] The appellant, aged 25 years, was indicted for the offence of rape contrary to Sections 123 and 124 ofthe Penal Code Act, Cap 120. - [2] The particulars ofthe Indictment were that: Buteraba Stefano on 23'd February 2007 at Mawuku village in Mpigi District did have unlawful camal knowledge of NS without her consent. He was indicted, tried, convicted and sentenced to 25 years of imprisonment. The appellant was dissatisfied with the decision of the trial Court, hence this appeal on two grounds; - l) The learned trial Judge erred in law and/act when she convicted the oppellont of rape without proof of any of the ingredients. - 2) The learned trial Judge erred in law and fact when she imposed <sup>a</sup> monifestly harsh, excessive and illegal senlence against the appellant. - [3]The Respondent opposed the appeal on the grounds that the trial Judge properly evaluated the evidence on record and came to the right conclusion that the appellant was guilty.


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#### Representation

[4]At the hearing, the Appellant was represented by Mr. Henry Kunya on State brief. The Respondent was represented by MS. Ainebyoona Happiness, Chief State Attomey.

# Submissions by counsel for the Appellant Ground One

- [5] Counsel submitted that the trial Judge rightly stated that the appellant was to be convicted only on the strength of the prosecution's case and not on mere suspicion or weakness of the defence case. Counsel argued that contrary to that, the trial Judge went ahead and passed judgment without proving all the ingredients of the offence. - [6] Counsel argued that the prosecution did not prove that there was unlawful carnal knowledge. He additionally argued that the incident was alleged to have occurred on 23'd February 2007, utd the victim reported the matter to the police on 3'd March 2007, about 8 days later. The victim was examined by Nyanzi Israel, Medical Clinical Officer, at Kinoni Health Centre, where it was found that the victim was; - l. Female, adult aged 78 years old. - 2. She had signs ofpenetration - 3. There were injuries /inJlammations in her privale parts attributed to forc eful se xuol i nte rcourse. - 4. Had injuries on elbows, thighs, and complained of bockache and chest pain. - 5. Injuries consistent with putting up resistance. - 6. The injuries above were about four (1) days - 7. The victim complained of abdominal pain, which was a sign of sexually transmitted diseases.

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- [7] Counsel contended that PF 3,A was erroneously admitted in evidence contrary to section 66 (1) of the Trial on Indictment Act (TIA). It was contended that the Judge erroneously admitted the evidence that the gomesi was disorganized and in an improper form. - [8] Counsel contended that the prosecution did not prove lack ofconsent from the victim. He argued that the evidence on record was contrary to what was alleged to have occurred on the fateful night. He argued further that whereas the victim (PW 3) and PW5 alluded to the existence of facial injuries having been sustained by the victim as a result of the said sexual assault, P. Exhl never mentioned anyhing to that effect. - [9]Regarding the participation of the appellant, counsel submitted that had the trial Judge subjected the evidence on record to a thorough evaluation as was expected of her, she would have for.rnd that indeed the appellant did not participate in the commission of the alleged offence. Counsel argued that the incident is alleged to have happened when there were many acrivities, so it could have been someone else who committed the offence. It was further submitted that there was evidence that there was insufficient light to identiff the appellant as the assailant. Counsel submitted that considering that the victim was 78 years old, her vision could have been impaired to properly identi\$r the appellant, in addition to the fact that there could have been a possibility ofthem being drunk ofalcohol. - [10] Additionally, counsel argued that the victim did not make any attempt to alert people from the function to come to her rescue. Counsel also stated that the allegation of the victim having an STD was not conclusively addressed, whether it was from the appellant, because they did not carry out the same tests upon the appellant as well. Counsel cited Mulindwa James vs Uganda, SCCA No. 23 of 2014 to the effect that where an inference has not

been connected to an appellant, such an inference is a mere suspicion which, however strong it may be, is not sufficient to link a person with criminal responsibility /culpability.

[11] It was contended that the prosecution did not rebut the alibi raised by the appellant. Counsel argued that the prosecution therefore failed to prove all the ingredients ofthe offence ofrape as alleged by the prosecution.

## Ground Two.

- Uzl Counsel faulted the trial Judge for failure to consider all the mitigating factors raised by the appellant, arguing that the Judge ignored them. Counsel argued that the Judge only took note ofthe victim's age and the previous care she extended to the appellant. - [ <sup>1</sup>3] Counsel submitted that the sentence was shrouded in ambiguity, confusion and vagueness as one cannot tell with certainty whether or not the <sup>3</sup>years spent on remand had been deducted as required under Article 23(8) of the Constitution of the Republic of Uganda. He argued, therefore, that the sentence was illegal and a nullity. Counsel cited Murogowabu William vs Uganda, CACA 212 of 2015 and Kwamusi Jacob vs Uganda, CACA 203 of 2009. - [14] Counsel was alive to the position of the law in Benard Kiwalabye vs Uganda, SCCA No. L43 of 2001, to the effect that the appellate court is not to interfere with the sentence imposed by the trial court, which exercised its discretion whilst sentencing, unless the exercise of the discretion was such that the trial court failed to consider an important matter or circumstance which ought to have been considered when passing sentence. - [15] Counsel argued that had the trial court considered all the mitigating factors before it, it would have come up with a sentence that was appropriate in the circumstances. Counsel prayed that, considering the above, this court

should exercise its power under Section 1l ofthe Judicature Act to re-sentence the appellant.

# Submissions by counsel for the respondent Preliminara point of law

- [6] Counsel raised a preliminary point of law alleging that ground one offends Rule 66(2) of the Court of Appeal Rules. He contended that the ground was not specific on what point of law or fact was in contention. Counsel stated that counsel for the appellant failed to specify which piece of evidence is said not to have been considered by the trial Judge. To support his allegations, counsel cited Mugerwa John vs Uganda, Criminal Appeal No. 0375 of 2020, Benjamin Oteka vs Uganda, Criminal Appeal No. 175 of 2018, Sseremba Dennis vs Uganda, CACA No. 480 of 2017 and Ntirenganya Joseph vs Uganda, CACA No. 109 of2Ol7. - [7] Counsel prayed that this court finds that ground one offends Rule 66(2) of the Court of Appeal Rules.

### Merits of the appeal

### Ground one

[18] In response to the allegations of failure to prove unlawful sexual intercourse, counsel for the respondent argued that according to the record of appeal, the court referred to PExh.1(PF3) on which the victim was examined. He submitted that PExh.1 indicated that the victim had signs of penetration and injuries/inflammation in her private parts consistent with forceful sexual intercourse. He further submitted that this was corroborated by the evidence ofNakabugo Stellah, PW3 who testified on oath that she was indeed raped by the appellant who put his penis into her vagina without her consent and the

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testimonies of her nephews to whom she immediately reported after commission of the offence, that the appellant had raped her.

- [ 19] Regarding the status of the gomesi, counsel argued that PW3 testified that the appellant grabbed her gomesi and pulled her down like a goat. Counsel argued that this was corroborated by the evidence ofPW 5, who said that the clothes of PW3 were disorganized, contrary to the way she appeared at the function. Counsel submitted that they were satisfied that this ingredient was proved beyond a reasonable doubt. - 120) With regard to lack of consent, counsel cited the testimony of PW3, where she testified that the appellant grabbed her gomesi and pulled it, and she fell. Counsel submitted that PW3 stated that the appellant pulled her like a goat, tried to cover her mouth and nose and got hold ofher neck. Counsel argued that in her testimony, she stated that she had inquired from the appellant why he was strangling her. Counsel submitted that PW3 also stated that the appellant pulled her beyond her house to the mango tree and the appellant placed her on the mango tree's roots, where she felt pain. - l2ll Counsel argued that this was corroborated by the medical report admitted as P. Exhl, which showed that the victim had injuries on her elbows and thighs and complained of backache and chest pain. It was contended that these injuries were consistent with her putting up resistance. Counsel submitted that these pieces of evidence prove that consent was absent from the victim. - l22l Counsel further submitted that there were no contradictions in the prosecution's evidence and if there were any, they were minor and did not go to the root of the matter. Neither were they intended to mislead the court as to the truthfulness of the case. Counsel prayed that this court finds that this ingredient has been proved beyond reasonable doubt.


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- [23] On the participation of the appellant, counsel submitted that the court properly addressed its mind to the evidence adduced pertaining to identification and came to the right conclusion that the appellant had participated in the commission of this offence. Counsel cited Abdullah Nabulere & Others vs Uganda, CACA No. 9/1978, where the court sets down the principles of proper identification of the assailant. - l24l Counsel submitted that, considering the guidance offered in Abdullah Nabulere (supra), PW3 testified that she was retuming home from the kasiki at around 10:00 p.m. when she noticed that the appellant was calling her, ' jjajja, fiajja", to which she did not respond. It was contended that when she reached home, the accused grabbed her gomesi, pulled it, and she fell and he pulled her like a goat until he got under the mango tree and ordered her to widen her legs. Counsel argued that the proximity of the act caused them to be close, so she was able to identiff him. - l25l Counsel additionally submitted that there was a big pressure lamp with bright light that enabled her to see him following her until the bright light warned off. It was contended that the victim knew the assailant very well from the time he was bom. Counsel argued that she could not have mistaken him. - 126l Counsel prayed that this court dismisses the appeal on the grounds that the trial Judge properly evaluated the evidence on record.

### Ground two

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l27l Counsel submitted that an appropriate sentence is a matter of discretion ofthe sentencing Judge; each case presents its own facts upon which a Judge exercises discretion. Counsel cited Kyalimpa Edward vs Uganda, Supreme Court Appeal No. 10 of 1995 and Kiwalabye Bernard vs Uganda, SCCA No. 143 of2001. Counsel argued that according to the above decisions, the appellate court will only interfere with a sentence imposed by a trial court if

it is evident that it acted on a wrong principle or overlooked some material fact, or if the sentence is manifestly harsh and excessive in view of the circumstances of the case.

- t28] Counsel submitted that the maximum sentence for the offence of rape is death and the Judge considered both aggravating and mitigating factors before passing the judgment. Counsel argued that it was misleading for counsel for the appellant to state that the trial court did not consider the mitigating factors. Counsel cited Kato Kajubi vs Uganda, SCCA No.20 of 2014, where the court found that the right to a fair hearing should not only encompass the rights of the accused person or convicted person during the sentencing stage. It should also encompass the rights of the victim of crime as well as the public interest. - 129) Conceming consistency, counsel cited Mubangizi Alex vs Uganda, SCCA No. 7 of 2015, where the court upheld a sentence of 30 years' imprisonment, noting that it was a borderline case that could have attracted life imprisonment after considering the advanced age of the victim. In Anguyo George vs Uganda, CACA No.004 of2014, the court upheld a sentence of 40 years' imprisonment in a rape case where the victim was 54 years old and the appellant was 26 years old. - [30] Counsel prayed that this court should frnd that the sentence of25 years for a victim who was 78 years old was neither manifestly harsh nor excessive. - [31] Regarding whether couft considered time spent on remand, counsel cited Abelle Asuman vs Uganda, SCCA No. 066 of 2016, where court held that where a sentencing court has clearly demonstrated that it has taken into account the period spent on remand to the credit of the convict, the sentence would not be interfered with by the appellate Court only because the

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sentencing, Judge orjustices used different words in their judgment or missed to state that they deducted the period spent on remand.

- l32l Counsel submitted that the trial Judge did consider the time spent on remand, arguing that the trial court complied with the requirement under Article 23(8) of the Constitution. Counsel cited Kizito Senkula vs Uganda, [20021 UGSC 36, where the court held that to take into account the period spent on remand does require a trial court to apply a mathematical formula by deducting the exact number ofyears spent by an accused on remand from the sentence to be imposed by the trial Court. Counsel argued that the cases referred by counsel for the appellant were decided alter the Rwabugande decision, yet the sentencing regime then did not require such a mathematical deduction. Counsel cited Karisa Moses vs Uganda, [2019] UGSC 21, to the effect that the position of Rwabugande does not apply retrospectively. - t33] Counsel prayed that this court should not interfere with the sentence meted down to the appellant.

### ANALYSIS

### Role of the First Appellate Court

l34l Under Rule 30(1) of the Judicature (Court of Appeal Rules) Directions, 2005, the duty ofthis court as the first Appellate Court is to re-evaluate the evidence on record and come to its own conclusions. This was re-echoed in Henry Kifamunte vs Uganda, I19981 UGSC,20.

## Preliminary point of law

[35] Counsel for the respondent raised a preliminary objection, contending that ground one offends Rule 66(2) of the Rules of this court. We, however, disagree with this contention. The ground is clearly stating that the Judge erred when she convicted the appellant of rape without proof of any ingredient. We find that this preliminary objection has no merit. It is, therefore, ovemrled.

 ## Merits of the Appeal

- [36] The offence of rape is committed by any person who unlawfully has carnal knowledge of a woman or girl above 1 8 years of age without her consent or if the consent is obtained by force or by intimidation of any kind or by fear of bodily harm or false representations as to the nature of the act or impersonating a husband in case of a married woman. Therefore, the three essential elements ofthe offence of rape clearly embedded in Section I l0 of the Penal Code Act Cap 128, are; - - (l) Camal knowledge of a woman or girl, - (2)Lack of consent, making it unlawful; - (3) By the accused. - l37l These ingredients have to be proved by the prosecution beyond any reasonable doubt. This burden does not shift to the appellant. - [38] In Joseph Kiiza & Anor. vs Uganda [978] HCB, Sexual intercourse at common law, known as camal knowledge, is penetration of a male organ into that of the female. In Uganda vs Odwong Dennis and Olanya Dickson, 11992-93], HCB 71, it was held that in rape cases the prosecution must prove penetration of the female reproductive organ by the female reproductive organ. - [39] According to the recording of the appeal, the victim testiflred on oath that the appellant had sexual intercourse with her. This was corroborated with the evidence from P Exh.1, on which the victim was examined, indicating that the victim had signs of penetration and injuries /inflammation in her private parts consistent with forceful sexual intercourse. The same was further corroborated by the nephews of PW 3, that is, PW4 and PW5, to whom the victim told immediately after the incident. Specifically, PW 5 testified that the gomesi of the victim was disorganized, an indication that she had gotten


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involved in a struggle. We find that the trial court properly evaluated evidence concerning this ingredient.

- [40] On the second ingredient on consent, in Kibazo vs Uganda, [1965] EA 507, the Court ofAppeal for East Africa held that in a charge ofrape the onus is on the prosecution to prove that sexual intercourse took place without the consent of the complainant and this must be proved beyond reasonable doubt. According to PW 3, on the fateful day, the appellant pulled her gomesi down, while pulling her like a goat and trying to cover her mouth and nose. She further testified that the appellant pulled her towards the mango tree, where he placed her on the roots of the mango tree before having sexual intercourse with her. This was corroborated by the evidence from P. Exhl, which demonstrated that the victim had injuries on her elbow and thighs and complained of back ache and chest pain. We find that the trial Judge properly evaluated evidence that there was no consent from the victim - [41] Lastly, the appellant's participation is relevant. The appellant was well known to the victim, PW3, testified during examination in chief that she had known the appellant since childhood and that the milk he took was from her cows. The victim testified that on the 23'd of February,2OO7, at about 10:00 p.m., while on her way from the Kasiki of her granddaughter, the appellant came following her from behind, calling her \*jjajja, jjajja," but she did not respond. She alleged that she was able to identifz him from the pressure lamp at the function (Kasiki). Then the light faded away, and the appellant grabbed her and pulled her like a goat, taking her towards the mango tree. The appellant put her on the mango tree roots and then raped her. - 142) This evidence was corroborated by the evidence of PW4 and PW5, who testified that their aunty retumed from a "Kasiki" and told them that the appellant had raped her. PW5 testified that the victim's clothes were


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disorganized compared to how she was before she left the Kasiki. Additionally, the conduct of the appellant after the act is not that of an innocent person. First, he resisted arrest and was helped by his brothers to escape from the "Kasiki"., and he went into hiding for four days before the victim was informed that he was in hiding.

- l43l We have perused through the judgment of the trial Court, and we find that, in assessing the issue of participation of the appellant, it considered the defence of alibi as raised by the appellant. The court was alive to the role of the prosecution in placing the appellant at the scene of crime. The court considered the evidence of PW3, PW4 and PW5 to place the appellant at the scene of crime. PW4 and PW5 corroborated the evidence of PW3 that the appellant was at the scene of crime, stating that they attempted to arrest the appellant, but he was rescued by his brothers. We find that the court properly assessed the evidence ofplacing the appellant at the scene of crime. - l44l The trial court also assessed the evidence on record regarding the existence ofa grudge as alleged by the appellant. Considering the evidence on record and specifically, PW 5's evidence, we agree with the findings of the trial Judge that the grudge did not exist. It was fabricated by the appellant in a bid to evade justice. - [45] Lastly, regarding the issue ofproper identification, the trial court found that the circumstances available afforded proper identification ofthe appellant by the victim. The court took note of the light from the pressure lamp. It also took note of the fact that the appellant called the victim before the act of unlawful camal knowledge, having known him from childhood, she was able to recognize his voice. We note that all these circumstances satisfu the principles of proper identification laid down in Abdalla Nabulere & Another vs Uganda, [2018] UGCA 65. This Court held that;


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"The Judge should then examine closely the circumstdnces in which the identifcation came to be made, particularly the length of time, the distance, the light, and the familiarity of the witness with the accused. All these factors go to the quality of the identification evidence. If the quality is good the danger of a mistaken identity is reduced but the poorer lhe quality the greater the danger when the quality is good, as /or example, when the identification is made after a long period of observation or in salisfoctory conditions by a person who knew the accused before, a court can safely convict even though there is no other evidence to support the identification evidence, provided lhe courl adequately warns itself of the special needfor caution"

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146l Considering the principles stated in Abudalla Nabulere (supra), we find that the trial court properly evaluated the evidence concerning the identifrcation of the appellant and consequently, the participation of the appellant. We cannot fault the trial Judge.

- l47l This ground lacks merit and therefore, it fails. - [48] Regarding the power of this Court in interfering with the discretion of the sentencing Judge, the Supreme Court in Kyalimpa Edward vs Uganda, Criminal Appeal, No. 10 of 1995, (unreported) referring to R vs De 114: Haviland, (1983) 5 Cr. App. R(s) 109 held as follows on page

" An appropriate sentence is a matter for the discretion of the sentencing Judge. Each case presents its ownfacts uponwhich <sup>a</sup>judge exercises his discretion. It is lhe practice that os an appellate court, this Court will not normally interfere with lhe discretion of lhe sentencingjudge unless the sentence is illegal or unless court is satisfed lhat the sentence imposed by the lrial Judge was manifestly harsh or so excessive as to amount to injustice: Ogalo s/o Owoura vs R (1954) 2 I EACA 270 ancl R vs Mohamedali Jamal (1918) 15 EACA 126"

149) While sentencing, the trial Judge stated as follows;

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## ,,ALLOCUTUS..

Harriet Ssali: The convict is a first-time offender. He is <sup>a</sup> young man of25 years. He has been on remandfor lhree years. He has a wife and children. The Defence prays for o lenient sentence for the convict.

Stefano Buterabo My Lord, this is the first time to commit the offence and I have a wift and rwo children and since I am a lad of 25 years, I pray the court considers these factors. <sup>I</sup>pray lhe court to give me d sentence that will enable me lo continue my work and return to myfamily. I pray that it should consider lhe period of remand and give me a reasonable sentence and thot the period of remand should be the beginning of my sentence.

## SENTENCING:

Rape is a capital offence for which a convict is liable to sffir death. This ofibnce involves violence to the victim, emotional repercussions and it is possible thal the victim con conlracl incurable sexually tronsmitled diseases. I have carefullv qonsidered what Prosecution has submilted as aqsravatinq lors. I <sup>h</sup> d De/bnce Counsel on behalfol'the conNict ond v,hat the convict himsell'hud to soy in milig(llion ol'the sentence. Iparlicularly note that the victim was a 78-year-old woman who had shown kindness to the convict, but instead, the convict paid her with evil coins. In order to deter others who no longer have morals to respect people old enough to be their grandmothers, Courts of lcru must come to the rescue of society and mete out deterrenl sentences. I, therefore, hereby senlence you. Stefano Buleraba, lo a term ol imprisonment o/ twenlv-/ive (25) vear,g


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The term spenl on remand has been computed already lrom this lerm o-f imorisonment. Emphasis mine

[50] We note from the above that the trial Judge considered all the mitigating factors that were presented before her in court when she stated that;

> "I have olso weighed the submission made by the Defence Counsel on behalf of the convict and what the convict himse(had to say in mitigation of the sentence. "

- [51] The trial Judge may not have mentioned the mitigating factors specifically, however, it suffrces that in her sentencing ruling, she mentioned the fact that she took into consideration all that the appellant had stated in mitigation. With this, we cannot fault her. We find that she considered the mitigating factors. - [52] The appellant alleged thatthe trial Judge did not take into consideration the time spent on remand. Article 23(8) of the Constitution of the Republic of Uganda 1995 provides thus;

"where a person is convicted and sentenced to d term of imprisonment for an offence, any period he or she spends in lawful custody in respect of the offence before lhe completion of his or her trial shall be laken inlo account in imposing the term of imprisonment. "

[53] In Rwabugande Moses vs Uganda, [2017] UGSC 8, the expression "take into account" the remand period was interpreted by the Supreme Court to involve arithmetical deduction, thus:

> "lt's our view that the taking into account of the period spent on remand by a court is necessarily arithmetical. This is because the period is lonwn with certainty and precision; consideration of the remand period should, therefore, necessarily mean reducing or subtracting that period from the final sentence. That period spent in


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lawful custody prior to the trial must be specifically credited to an occused. "

[54] In Nashimolo Paul Kibolo vs Uganda, [2020] UGSC 24, the Supreme Court clearly stated that the position in Rwabugande does not apply retrospectively. According to the record, this decision was made on 1 lth May, 2010, way before the decision in Rwabugande was made. The sentencing regime then was Kizito Senkula vs Uganda, (supra). In this case, the court held that;

> "As we urulerstand the provisions of article 23(8) of the Constitution, they mean that when o trial court imposes a term of imprisonment as sentence on a convicled person the court should take into occount the period which the person spent in remand prior to his/her conviction. Taking into account does nol mean qn arithmetical exercise. "

- [55] We frnd that the trial Judge properly complied with the requirement under Article 23(8) of the Constitution. - [56] Regarding the argument that the trial Judge passed a manifestly harsh and excessive sentence, we are guided by the fact that the maximum sentence for the offence ofrape is death under Section 110 and 111 ofthe Penal Code Act, Cap 128, and the sentencing guidelines. According to the third schedule of the sentencing guidelines, the starting point for the offence of rape is 35 years. The Supreme Court in the case of Aharikundira Yustina vs. Uganda (supra) held that;

"There is a high threshold to be mel for an appellate court to interaene with the sentence handecl doien by a trial judge on grounds of it being manifestly excessive. Sentencing is not a mechanical process but a matter of .judicial discretion; therefore, perfect uniformity is hardly possible. The key word is "manifestly excessive". An appellate courl will only intervene

where lhe sentence imposed exceed:; lhe permis.sible ronge or sentence voriotion. " (Emphasis ours)

- [57] We have considered sentences in similar offence like Mubangizi vs Uganda, CACA No 12 of 2012, where the court confirmed a sentence of 30 years' imprisonment. With the above, we find that the sentence of 25 years is not harsh and manifestly excessive as alleged by the appellant. - [58] The appeal fails and the appellant will continue serving his sentence.

| We so Order | | |------------------------------------------------------------|----| | tl<br>Dated, signed and delivered this<br>dav<br>m<br>2025 | of | | | | | CHRJSTOPHER GASHIRABAKE | | | JUSTICE OF APPEAL | | | | | | DR ASA<br>GENYI | | | L<br>EO<br>JUST<br>APP<br>t<br>JOH<br>M<br>MUSISI | | | JUSTICE OF APPEAL | |

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