Kato v Uganda (Criminal Appeal 248 of 2016) [2024] UGCA 176 (16 July 2024)

# THE REPUBLIC OF UGANDA IN THE COURT OF APPEAL HOLDEN AT MASAKA

#### CRIMINAL APPEAL NO.0248 OF 2016

(CORAM: Hellen Obura, Muzamiru Mutangula Kibeedi, Moses Kazibwe Kawumi, JJA)

KATO IDDI alias KOJJA

APPELLANT

#### **VERSUS**

#### **UGANDA**

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**RESPONDENT**

#### (An appeal from the decision of Keitirima J delivered at Masaka on 19<sup>th</sup> 10 July 2016 in Criminal Session case No.124 of 2014)

#### JUDGMENT OF THE COURT

The Appellant was charged and tried for Aggravated defilement contrary to sections 129(3) and (4)(a)(b) of the Penal Code Act. On $19^{th}$ July 2016 the Appellant was convicted and sentenced to 10 years imprisonment.

#### **Background**

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On 8<sup>th</sup> February 2014 while at Mutambala Landing site in Kalangala District, the Appellant who was a casual labourer in the area went to the home of the victim's parents. The victim *(hereinafter referred to as "NF")* 20 was at home. The Appellant told her to go to his home and the victim obliged since she had always gone there.

The Appellant defiled the victim who was then 3 years old and thereafter bathed her. After a while the victim's mother went looking for her. The mother asked the victim what she was doing in the Appellant's house and her response was that the Appellant had put his penis into her private parts.


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The victim's mother reported the incident to the Chairman Lc1 who escalated the complaint to Kalangala Police station. The Appellant was arrested on 9<sup>th</sup> February 2014 and subsequently charged. He pleaded guilty to the charge and was sentenced to 10 years.

Dissatisfied with the sentence imposed by the trial court, and having been granted leave under Section 132 (1) (b) of the trial on indictment Act, Cap 23 and Rule 43 (3) (a) of the rules of this Court the Appellant lodged an appeal.

## 10 Ground of Appeal.

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1. That the learned trial Judge erred in law and fact when he sentenced the Appellant to 10 years which sentence is harsh and manifestly excessive in the circumstances.

### Representation

Ms. Caroline Marion Aciro-Chief State Attorney holding brief for Ms. 15 Nabaasa Caroline appeared for the Respondent while Ms. JOAN Ainebyona appeared for the Appellant on state brief.

### Submissions

For the Appellant, counsel argued that it is trite law that al appellate court should not interfere with the sentence imposed by the trial court 20 unless it is either manifestly harsh or so low as to amount to a miscarriage of justice.

The appellate court may also interfere where an important matter or circumstance which ought to have been considered was ignored.

25 Counsel cited Kiwalabye Bernard V Uganda. SC Criminal Appeal No.143 of 2001 and Olar Joseph Peter V Uganda. CA Criminal Appeal No.30 of Jf<br>Jor<br>Jor<br>Jor **2010** for the proposition.


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It was submitted that the Appellant in allocutus told the Trial Judge that he is a young man who was HIV positive as mitigating factors but the Court imposed a harsh and excessive sentence of 10 years even ignoring the age of the Appellant.

5 Counsel cited Kabatera Steven V Uganda. CA CA No.123 of 2001 in which the court stated that the age of an accused person is always a material consideration that ought to be taken into account before a sentence is imposed. The court was urged to consider the appellant's 43 years at the time the offence was committed to impose a lesser 10 sentence.

It was further argued that the court failed to follow the consistency principle in imposing the sentence as shown in the case of ZZiwa **Mohammad V Uganda CACA No.127 of 2003** where the court upheld a 5 years sentence in an Aggravated defilement appeal.

The cases of Elungat John Michael V Uganda CACA No.6 of 2002 and $15$ Oryem David V Uganda. CACA No.331 of 2019 where a custodial sentences of 5 years were upheld by the court.

The Respondent opposed the Appeal and submitted that the sentence imposed was in the range stipulated in the **Constitution (Sentencing**

Guidelines for Courts of Judicature) (Practice) Directions 2013. It was 20 submitted that the trial court considered all the mitigating and aggravating factors prior to imposing the sentence which was also consistent with the range imposed by the courts in cases with almost similar facts.

#### 25 **Consideration by the court**

We have considered the submissions filed by Counsel and perused the case law cited in support of the respective arguments. 102

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This being a first appeal we are required to re-appraise the materials placed before the trial Judge and make conclusions both on the law and the facts. We are however mindful of the fact that we had no opportunity to observe the witnesses during the trial

5 Kifamunte Henry V Uganda. SC Criminal Appeal No.10 of 1997.

The court is also cognizant of its limited powers to interfere with the sentencing discretion enjoyed by the trial court save in instances that were submitted on by Counsel for the Appellant as laid out in a myriad of cases.

10 Kiwalabye V Uganda(supra), Ogalo s/o Owoura V R (1954) 24 EACA 270.

The trial Judge in arriving at the sentence imposed considered the aggravating and mitigating factors that had been submitted on by Counsel. The age of the Appellant who was at the time referred to as a 15 young man, his being HIV positive and not having wasted court's time. The court also considered the time he had spent on remand before imposing a 10 years' prison sentence.

We are not persuaded that the circumstances of the case make the sentence imposed by the trial Judge harsh or excessive. The Appellant was HIV positive and he exposed the innocent toddler to such cruelty 20 knowing he was sick. At the age of 43 the Appellant was

Medical evidence shows that the Appellant even had a pus discharge from his penis at the time he committed the offence. Available case law also supports the decision of the trial Judge. In **Ntare Augustine V**

Uganda CACA No.53 of 2011 the appellant who defiled an 11-year-old 25 child had a sentence of 25 years upheld by the court.

In Magoro Hussein V Uganda. CACA No.261 7305 of 2016 the court upheld a sentence of 20 years where the victim of the Aggravated Jes defilement was a 5-year-old child.


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All factors considered, the sentence imposed was legal and not harsh or excessive. It is upheld by the court and the Appeal is dismissed for want of merit.

DATED at Masaka this ... lotto... day of July 2024.

Hellen Obura **Justice of Appeal**

abee 6<br>12024

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Muzamiru Mutangula Kibeedi **Justice of Appeal**

Moses Kazibwe Kawumi $15$ **Justice of Appeal**