Kayondo v Uganda (Criminal Appeal 27 of 2019) [2024] UGCA 228 (30 August 2024)

## THE REPUBLIC OF' UGANDA

## THE COURT OF APPEAL OF UGANDA AT KAMPALA

Coram: Egonda-Ntende, Cheboion & Mugengi, JJA

## CRIMINAL APPEAL NO. O27 OF 2019

(Arising from the Decbion of the High Courl of Uganda at Mukono, (Hon. Justice Susan Okalang) dated 77th January 2019 in Ciminal Session Case No. O59 of2O14)

| SSALONGO KAYONGO TVAN | . APPELLANT | |-----------------------|------------| | \rERSUS | | | UGANDA | RESPONDENT |

## JUDGMENT OF THE COURT

## Introductlon

[1] Ssalongo Kayongo lvan, the Appellant, was indicted for the offence of Rape contrary to Sections 123 and 124 of the Penal Code Act, Cap. 12O. He was tried, convicted, and sentenced to 15 years and 4months imprisonment.

{21 The brieffacts of this Appeal are that on 1"t May2Ol4 at Lutengo 'A'village Nama Sub-County, Mukono district, the Appellant had unla\*{ul carnal knowledge of Nyirampanibanje Ritah without her consent.

[3] Dissatisfred with the decision of the High Court, t]re Appellant lodged this appeal on the grounds:

- Tle Learned Tial Judge ened in law and, in fact, tuhen she failed to adequatelg eualuate the euidence on the record regarding consent, hence reaching an erroneous conclusion. t - It Tlutt the Learned Tial Judge ened in latu and, in fact, wlen sLte meted out a manifestlg tarsh and excessiue sentence against the Appellant. - [4] The Respondent opposed the Appeal and contended that the leamed trial Judge correctly evaluated the evidence on record and reached the correct conclusion. Further, that the sentence passed was neither harsh nor excessive.

## Representation

[5] Senior Counsel Henry Kunya appeared for the Appellant on state brief at the hearing of the Appeal, while Ms. Ainebyona Happiness, Chief State Attorney, appeared for the Respondent. With the Court's leave, Counsel's written legal arguments were considered in determining the Appeal.

#### Submissions

## Appellant's Submlsslons.

[6] Counsel for the Appellant submitted that the Appellant's testimony at pages 47 and 49 of the record of Appeal, showed consensua-l sex with the complainant/victim, a known prostitute which was not challenged during cross-examination. He submitted that the evidence shows that the victim and the Appellant met at Recess Bar, Mukono, and had consensuaf sexual intercourse before going out for a whole night encounter. He relied on the case of Ja nr,s Sa uoablrt & Anor vs. Ugc,n,drr, Supretne Court Crlmlnrrl Appal No. 5 oJ 799O, where the court held that the omission or neglect to challenge evidence-in-chief would lead to an inference that the evidence is accepted subject to its being incredible or probably untrue.


[7] Counsel further faulted t]re prosecution for their failure to summon Nakasaga Sirisita, the victim's sister, and her landlord, given the victim's evidence that she had travelled to Mukono to look for her sister and that the sister's landlord gave the victim the keys to her sister's house. Counsel relied on the case of Kanaldtlya Muha ned os. Ugaada Coutt ol Appeal Crlnlao,L Appal No. 60 of 2OO3, for the proposition that when material witnesses are not called, the inference is that such witnesses might have given evidence that is unfavourable to the prosecution [8] Concerning the sentence, Counsel submitted that the Appellant was a l"t time offender with family responsibilities of four children and one wife, had spent over 4 years and 8 months on remand, and was remorseful. He invited Court to find the sentence imposed harsh, excessive, and out of the sentencing range for rape cases. He cited the case of Natr,trlnda Tamson vs. Uganda [2015] U@A 3, where the Court of Appeal substituted a sentence of 18 years for rape with <sup>10</sup> years. He stressed that the victim was 16 years old while the Appellant was 29 years old.

[9] Counsel prayed that Court quash the conviction and set aside the sentence. In the alternative, he prayed that the sentence be substituted with an appropriate one

## Respoadeat'r submbsloas.

[0] Counsel for the Respondent submitted t]rat under Section lO4 of the Evidence Act, the Appellant had the burden to prove that he had consensual sex with the victim. Counsel for the Respondent referred Court to pages l l to 34 ald 31 to 33 ofthe record of appeal for proofthat the Appeliant was identified correctly The respondent further submitted that there was no evidence in crossexamination suggesting that the victim was a prostitute.

{1 1] Concerning the failure of the prosecution to summon the victim's sister and landlord, the Counsel for the respondent invited the Court to find the evidence of PW2 and PW3, who interviewed the victim immediately aJter she reported to be credible and suflicient. The evidence of the victim's sister ard the landlord was, therefore, not necessary because they were not at the scene. He referred Court to Section 133 of the Evidence Act, which provides that no particular number of witnesses is required to prove any fact in issue.

[12] Concerning sentencing, Counsel for the Respondent submitted that t]re sentence imposed on the Appellant was neither harsh nor excessive but rather appropriate. She cited Blzlmana Jean Cld.de Vs. Uganda, Coutt o:f APpeal Crlnlnal Appeal 743 ol 2O7O and Ogekt Charles Vs. Uganda [2OO2] UGSC I5, where court confirmed a sentence of 15 years for rape and consequently dismissed the appeal.

[13] He further referred to cases in which this court gave higher sentences. See Sscll AIer Vs. Ugandd, Coutt ol Appeal Crlnlnal Appeal No. O57 of 2O75 and Mubanglzl Alex Vs. Uganda, Coutt of Appeal Crlmlnal Appeal No, 72 of 2O72, where court substituted a sentence of 40 years with 20 years' imprisonment and upheld a sentence of 30 years' imprisonment for rape respectively. Counsel prayed that the Appeal be dismissed.

#### Analysis

[la] We have carefully considered t]re submissions of Counsel, and the record of Appeal. As a first appellate court, we are alive to the duty of this Court to reappraise all the evidence at trial and come up with our inferences of Iaw and fact. (See Rule 3O ofthe Judtcature (Court ofAppeal Rules) Directions S. I 13-1O and Klfamante He^ry o Uganda [7998] UGSC 2O).

[15] In ground one, the l,earned Trial Judge is said to have failed to adequately evaluate the evidence on the record regarding consent, hence reaching arn erroneous conclusion.

[ 16] The Appellant concedes that he had sexual intercourse with the complainant/victim, I't in a room behind a bar, before taking her to his home. At page 47 of the appeal record, he testified that he paid for the service and that the victim consented. He, therefore, denies that it was forced. He admitted in crossexamination that the victim escaped from him that very night and that the victim led the police to his arrest.

[ 17] The victim, Ritah Nyirampanibanje who testified as Pw I , denies ttrat she consented. She testified that she hired the Appellant, a boda boda rider, to take her to the hospital at night because she was not weli. She was unfamiliar with Mukono town, having only been there for about six days. She had, however, seen the Appellant at his operation stage 3 days prior. They haggled about t] e transport fare

and settled for Ugx. 5000/-. As they set off, Pwl testified that a man called out to the Appellant not to leave him behind when they had come together. The Appellant invited the man to ride the motorcycle. The Appellant sat behind the victim, putting her in the middle. The victim was instead ridden to an isolated place in a sugarcane plantation and sexually violated by the two men who also took Ugx. l25,OO0/= from her.

[18] The victim testified that she removed her knickers and lay down as each took their turn. She did not resist because she feared being killed, seeing that she had been ridden to an isolated place in the middle of a sugar cane plantation. The Appellant suggested to his mate that they kill the victim, but his mate declined, saying that the victim had cooperated. They rode back, and the Appellant's friend's friend dropped off. The Appellant then started riding. He branched off a home where he left the victim in tJle custody of a man with instructions to keep an eye on her. She escaped from there and hid in the plantation till morning. She asked for directions to the main road, and a charcoal vendor directed her. She then reported to police.

[19] Rv2 Tambula Rogers, Pw3 Nakawala Margaret and Pw4 Akello Barbara are all police officers. Pw2 testified that the victim reported being raped by two men. She Iooked scared and trembling and led police to a home she believed to have escaped from the previous night, but the Defense secretary ofthe area, who had heard ofthe rape incident, led the team to Ssalongo's home, and he was arrested. Pw3 recorded the victim's statement and took her for a medical examination. She described the state ofthe victim as being scared, with red swollen eyes, and breaking down in tears. Pw4 visited the sugar cane plantation where the assault occurred and the potato garden where the victim hid when she escaped. Pw5, the medica-l officer examined the victim ald recommended PEP and EC to prevent HIV and unwanted pregnancy.

[20] At page 83 of the record of Appeal, the learned trial judge evaluated the evidence concerning consent. She found the act of the victim reporting to the police immediately, leading tJre police to the arrest of the Appellant, and detailing the circumstances leading to the sexual assault contained in the uncontested police statement (PE 1) as truthfully leading to the conclusion of involuntary sexual engagement. The learned trial judge further accepted the reason for the victim's cooperation with her assailants, noting that the two men derailed her from seeking medical help, abducted her, took her to a sugar cane plantation, and tied her mouth. She found that the victim was alone, facing two strong men, and even if she had resisted, she had no chance of defeating them.

[21] The learned trial judge further found the Appellant's admission that t]re victim escaped from his home inconsistent with the circumstances he described, that both agreed to consensual sex for which the Appellant paid upfront and first had a sexual encounter with her behind the bar before riding her to his home. She held that if they had enjoyed each other's good company, the victim would have no reason to escape. The judge believed the complainant that she escaped from her captors to save her life.

122) Under Section 123 of the Penal Code Act, rape will be established if consent is obtained by force or using threats or intimidation of any kind or by fear of bodily harm or any means of false representation. At page 83 of the record of Appeal, the learned trial judge found that the Appellant had used force to obtain consent. The force was disguised in their conduct, and the victim appreciated her environment. We note tJ:at at page 48 of the record of Appeal, the Appellant denied the existence of any sugarcane plantations in Mukono or Lutengo. However, at pages 40 and 41 the police ofhcer who visited the scene described the sugarcane plantation as sigrrifrcant, above 5 acres. The Appellant had deliberately told lies.

[23] Upon review of t}re evidence, we ltnd that the trial judge did not err in her conclusion. We reach the same conclusion concerning lack of consent. The first ground of appeal therefore, fails.

[24] in ground two of the Appeal, the Learned Trial Judge is faulted for meting out a manifestly harsh and excessive sentence against the Appellant.

{25] The iaw that governs appellate courts regarding sentencing is well settled. In Kannga Johnson v Uganda, SCCA .l\Io. 76 oJ 2OOO, the Supreme Court held:

> ". . . the Court of Appeal u-till not interfere with the exercise of dbcretion unless there has been a failure to exercise discretion, or failure to take into account a mateial consideration, or an error in principle was made. It is not suJficient that the members of the Court would haue exercised the ir dis c retio n diffe re nt ly.'

> > ?-

- [26] At page 9l of the record of Appeal, the trial judge considered a prison term of 20 years as appropriate. She deducted the 4 years and 8 months spent on remand, and directing the Appellant to serve 15 years and 4 months imprisonment. We note that the trial judge at pages 86 to 88 of the record of appeal took into account the mitigating and aggravating factors, as well as the a-llocutus by the Appellant. - [27] In his submissions, Counsel for the Appellant did not state the error made by the trial judge. As guided in tl:,e Kdmga Johnson case above, interference with sentencing discretion is not whimsical. We, thus, frnd nothing to fault the trial Judge in the sentence that she rendered.

## Dlsposltion

{281 The appeal is accordingiy dismissed. The Appellant shall continue to serve the sentence imposed by the lower court.

# It ls so ordered.

Irl Dated a-nd delivered at Kampala trris 2.3-. aay of ... M\. zoz+.

drick E da-N de

Justice of Appeal

rion Barishaki

Justice of Appeal

ugenyl

Justlce of Appeal