Kikomeko v Uganda (Criminal Appeal 2 of 2021) [2023] UGCA 214 (16 August 2023)

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# <sup>5</sup> THE REPUBLIC OF UGANDA

# IN THE COURT OF APPEAL OF UGANDA HOLDEN AT KAMPALA

(Coram: R. Butcera, DCJ, C. Gashirabakc, JA, O. Kihika, JA.)

### CRIMINAL APPEAL NO. OOO2 OF 2O2I

(Arising from Criminal Sessior? No. I ICT-0O-Cll-CS 072/20 I 8)

#### BITTWEIIN

### KIKOMEKO ISSA API'T],LLANT

#### AND

# UGANDA.... RESPONDENT

(Appeal .from the Judgment o.f the I ligh Court of Uganda I lolden at Kampala, by Dr. ll'inifred N. Nabisinde. J. delivered on 06'h March, 2020) 15

# . IUIX;ME,NT OF COUIIl'

#### Introduction

- l.l The appellant was indicted for Aggravated Defilcmcnt c/s 129(3)(4)(a) and (c) ofthe Penal Code Act Cap 120. - 20 - 2.] The facts as deduced from the record in the lower court were that on the l71h day of February 2018 at Kinaawa Didi Village, Kycngera Town Council, in Wakiso district, the victim N P a girl aged 4 ycars old, while playing in the court yard, the appellant called her to go to his house. While in the appellant's house, the appellant undressed her, put her into bed and had sexual intercourse with her. I'le later gavc her chapati and told her not to tell anyone at home. When her mother saw her come home with chapati, she interrogated her about who gave it to her. fhe victim told the mother what had happencd. In due course, the appellant was arrested and both him and the victim were taken for medical examination.

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3.] At the trial the appellant raised an alibi. The trial court convicted and sentenced him to 22 years and 01-month imprisonment.

4.] The appellant being aggrieved with the decision of the High Court lodged an appeal in this court. The appeal is premised on three grounds set out in the Memorandum of Appeal as follows;

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- 1. *That the learned trial Judge erred in law and in fact when she did* not properly analyze the prosecution evidence adduced before the court. - 2. That the learned trial Judge erred in law and fact when she failed to consider the appellant's defence witness and went ahead and convicted the appellant. - 3. That the leaned trial Judge erred in law and fact when she convicted the appellant and sentenced him to twenty-two (22) years and one 01-month imprisonment in the obtaining circumstance.

#### **Representation**

5.] At the hearing of the appeal, the appellant was represented by Dr. Daniel 20 Walyemera, on State brief. The respondent was represented by Mr. Ssemalemba Simon Peter, Assistant DPP.

#### Ground one

That the learned trial Judge erred in law and in fact when she did not properly analyze the prosecution evidence adduced before the court.

### <u>Submissions for the appellant</u>

6.] It was submitted that the learned trial Judge convicted the appellant on the evidence of PW3, the victim. The trial Judge corroborated it with the medical report and circumstantial evidence of PW4, the victim's mother, to convict



<sup>5</sup> the appellant. It was submitted for the appellant that thc evidence of PW3 and PW4 was inconsistent.

7.] It was submitted that the Judge erred when she found, after conducting a voir dire, that the child did not understand the nature of an oath but then ruled that the child would testifr since she understood the duty of telling the truth. That the child ought to have given unswom evidence. Counsel cited section 40(3) of the Trial on Indictments Act (TIA) and Opolot Ben Bosco vs. Uganda Criminal Appeal No. 151 of 2018, where court held that;

" in order.for a voir dire tesl to stand it ought to comply rtith u'hether the child has an understanding o.[ the obligation to speak lhe lrulh on lhe wilness sland: has the copacily to distinguish right fiom wrong and has the reliability to prove lhat at lhe material lime, she had conceived an accurole impression of lhe occurrence concerning which she slands lo testily und has a memory sufficient to retoin an irulependent recolleclion ofthe occurrence ond the capocity to express in u'ords such memory o/ lhe occurrence when etsked simple queslions. "

- 8.] Counsel submitted that the evidence of the victim did not pass the test stated therein and therefore it goes to the root ofthe trial. - 9.] Furthermore, in Counsel's opinion there were contradictions betwcen the evidence of PW3 and PW4. 'l'his demonstrated that the victim lacked an independent recollection of the events and capacity to express such an incident. Counsel submitted that at the trial, PW3 testified that the incident happened after lunch and she returned home when it was dark. She further testified that on the fateful day she was wearing blue leggings and the knickers were yellow. Whereas PW4 testified that the incident happened at 1l am. That the victim was wearing pink panty, short sleeved top and pink trouser.

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- <sup>5</sup> 10.] Counscl lor the appellant submittcd that the evidence of PW4 does not amount to corroborative evidcncc since she did not see the appellant dcfilc the victim. -fhat the medical rcport is not proof that the appellant committed the offence. - <sup>1</sup>1.] Furthcrmorc, counsel submitted that the court ought to have believed the alibi raiscd by the appellant since he had receipts to prove that he was in the said hospital at the timc of thc allcged incident. 'l'he appellant alleged that the victim's mother had requcstcd for a love affair that he turned down. Counsel citcd . Iamada Nzabaikukize vs. Uganda SCCA No. I of 2015, wherc court hcld that alibi can bc discredited by thc prosecution if it adduccs evidence that squarely places the accused at the scene of the crime. 10 15 - 12.) Counscl prayed that this ground be upheld.

### Submissions f<l r thc rcspondcnt

- 13.] In rcsponsc to the appellant's submissions, counscl for the respondent conceded that thc trial Judge misdirccted herself whcn she ruled that PW3, was to tcstily on oath yet she had earlier concludcd that PW3 was not in position to understand thc nature of the oath. It was contended that this misdirection did not occasion a miscarriage of justice to the appellant. counsel citcd scction 139 of thc'l'lA which protects the decision of High court from bcing ovcrturned becausc ol misdirection if there was no proof ol miscarriage oljustice. - 14.] That on the issue of corroboration, there was enough corroborative cvidence cvcn ilPW3 had not tcstificd on oath. Counsel referred this court to the decision of Okello Gcofrey vs. Uganda Criminal Appeal, No. 329 of 2010, and Bassita Hussein vs. Uganda SCCA No. 35 of 1995, where court held that; W


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<sup>5</sup> " the act ofsexual inlercourse ofpenelralion maybe proved by direct or circumslanlial evidence, usually the sexual intercourse is proved by the victim's own evidence and corroboraled by the medicctl or olher evidence ..." through desirable il's not a hard and.first rule that the victims evidence and medical evidence must always be adduced in every case of defilemenl to prove sexual intercourse of penetralion whalever evidence lhe proseculion may wish b adduce lo prove its case , such evidence musl be such lhal ils su./frcienl to prove lhe case beyond reasonable doubt "

> 15.] That the leamed Judge found corroboration of PW3's testimony in the evidence of PW4 to whom she revealed that the appellant had sexual intercourse soon after the commission of the offence. The other corroborative evidence was from PW5 to whom PW3 narrated what happened to her. Counsel cited section 156 Evidence Act that provides that;

"in order to corroborate the lestimony o.f o wilness, any former

stalemenl made by the wilness relaling to lhe some fact, at or about the time when lhe.fact took place, or before any outhorily legally compelent

lo invesligale the fact, may be proved. " 16.l Counsel submitted that the evidence of PW4 and PW5 sufficiently corroborated PW3's evidence within the meaning of section 156 of the

evidence Act.

# Submissions in rcioindcr

17.l In rejoinder to counsel for thc respondent's concession that the trial judge misdirected hersell'but that it did not occasion a miscarriage ofjustice, counsel for the appellant cited Dratia Saviour vs. Uganda, Criminal Appeal No. 154 of 20ll, where court defined what amounts to a miscarriage ofjustice as;

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<sup>5</sup> "mi.\carriage of .juslice is a ./itilure of ju.stice. ln a criminal lricrl, us regards un uccused / appellant. A./itilure ofjustice occurs if by reason of a misloke, omission or irregularily, in the trial, the accused/ appellont loses a chunce oJ ac(tuittul which wos fairly open to thal uccused/appe llant save.[or lhe mistake , omission or irregularily... ... ... ... miscarriage ofjustice is causad lo lhe oppellonl, u,here the evidence received by the triol court in absence ofa proper voir dire is evidence that is ry' vital importance and the trial court apart./|om being in error ds to lhe voir dire, is also in error of acting on lhe evidence when the some is nol corroborated, or the trial court does nol warn himselJ / herselJ'and the assessors of the danger of acling on such evidence"

<sup>1</sup>8.] Counsel submitted that despite the leamed trial Judge relying on wrongly admitted evidence of PW3, she further relied on the evidence of PW4 the mothcr of the victim, which did not sufficiently corroborate PW'3 evidence. Counsel contended that the evidence of PW4 was hearsay evidence.

# zo Considcration of Cou rt

- l9.l We are bound by thc legal principles of aw laid down in the cases of <sup>R</sup> V Pandya, 1957 EA 336 and Kifamunte Henry Vs. Uganda, SCCA No l0 OF 1997 and Okena Vs Republic, 1972 EA 32. - 20.1 Our role as the first appellate court is to re-evaluate the evidence on record. 'lhc appellate court is required to comb the lower courts record looking for thc alleged legal errors and omission that are stated to have caused a miscarriage ofjusticc to the appellant. - 21.1 The appellate court may, dcpending on its findings, quash, or uphold the decision of the lower court, come up with its own decision, address legal issucs of unfaimess or irrcgularity that are not contained in the memorandum but are glaring on the rccord which rcsulted into a miscarria W ge ofjustice and

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<sup>5</sup> or order for a retrial in the interest ofjustice, bearing in mind that litigation whether civil or criminal must come to an end.

- 22.) It is also trite that even where court has errcd, the Appellate court interferes with the decision of the lower court only where there has been a miscarriage ol justice to any of the parties in thc procccdings. -l'he basic principles of the law have to be strictly adhered to; thc presumption of innocence of an accused person (see article 28(l) (a) of the 1995 Uganda Constitution), the burden ofproofresting on the prosecution and standard of proof in criminal cascs being beyond reasonable doubt. (see the landmark case of Lltoolmington Versus The DDP 1936 AC 462). - 23.) Section 40(3) of the TIA, requires a judicial officcr to conduct a voir dire to establish whethcr the child undcrstands the naturc of an oath before they take their evidence. The section reads; 15

"Were in any proceedings any child of tender years does not in lhe opinion of lhe courl underslqnd the nature of an oath, his evidence may be received though not on oath, if in lhe opinktn qfthe court, he is possessed of sfficienl intelligence lo justify the reception of evidence and understands lhe duly ofspeaking the truth.

Providetl that where the evidence admilted by virtue o/ this subseclion is given on behalf o.f the proseculion, the accused shall not be lioble to be convicted unless such evidence is corroborated by some materiol evidence in support thereof implicating him".

24.) The import of the provision above quoted is to ensure that the courts take evidence ofthe child oftender age only upon satisfaction that the child is intelligent enough to testify on the matter before court and understands the

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duty of speaking the truth, as a witness and has the capacity to distinguish right from wrong.

- $25.1$ We agree with the submissions of both counsel that the trial Judge erred when she after finding that the child was not in position to understand the nature of the oath, went ahead and ruled that the child would testify on oath because she exhibited the understanding of telling the truth. Our understanding of that provision is that once court establishes that a child does not understand the nature of an oath, the court can go ahead and receive their evidence though not on oath. This is also conditioned on the fact that court must be satisfied that the child is possessed of sufficient intelligence to justify the reception of evidence and as well understands the duty of telling the truth. In the circumstances the trial Judge would have taken the evidence of PW3 but not on oath. - 26.1 Having found that the trial Judge erred procedurally and in her ruling, the pertinent question for this court is whether the said error occasioned the appellant a miscarriage of justice that would necessitate this court to quash his conviction and set aside the sentence. Section 139 of the TIA, provides that:

(1) Subject to the provisions of any written law, no finding, sentence or order passed by the High Court shall be reversed or altered on appeal on account of any error, omission, irregularity or misdirection in the summons, warrant, indictment, order, judgment or other proceedings before or during the trial unless the error, omission, irregularity or *misdirection has, in fact, occasioned a failure of justice.*

(2) In determining whether any error, omission, irregularity or misdirection has occasioned a failure of justice, the court shall have regard to the question whether the objection could and should have been raised at an earlier stage in the proceedings.

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- 5 27.) In establishing whether there was a miscarriage of justice by the said error, omission, irregularity or misdirection, this court is guided by subsection 2 which requires this court to establish whether there was any objection during the proceedings as regards the said error, omission, irregularity or misdirection. We note that the appellant was represented during the trial but there is no indication that any objection was raised by counsel regarding the irregularity of the said ruling. - 28.) Even when the trial Judge administered an oath this court shall proceed as though no oath was administered. The implication of this under section 40(3) of the 1'lA, is that an accused person is offered protection and cannot be convicted unless the evidence is corroborated by some other material evidence in support of implicating him. This court in Ascga Gilbert vs. Uganda, CACA No.0l6 of 2013, explained the protection section a0(3) of the'llA offers an accused person. The court held that;

"l'he need .for a voire dire in respect of a wilness of tender years, is .for lhe Court to be oble to decide whelher such a child witness is lo give evidence on oath or nol on ooth. lly so deciding the Court ensures lhat the accused is not denied oflhe slolulory prolection provided by Section 10(3) o.f the 'l'rial On Indiclments Act. 'l'he protection is that u,here a chiltl's evidence is received u'ithout taking an oath, then lhe conviclion connol be suslained unless lhere is corroboralion by some olher material evidence intplicoting lhe accused person. "

29.) It follows, therefore, that in terms of Section 0(3) of the Trial on Indictments Act the appellant's conviction on the basis of the evidence of PW3, can only be sustained if that evidence was corroborated by some other material evidence in support thereof implicating him of the crime. We shall determine this as we subject the evidence to fresh scrutiny while resolving the specific grounds ofappeal.

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<sup>5</sup> 30.] On re-submitting the whole evidence to a fresh scrutiny we find that the evidence of Pw3 is sufficicntly corroborated by Pw4's evidence to the effect that Pw3 reported to her soon after she had been defiled. PW4 testified that;

> "l'he child u,as playing, laler I saw her relurn wilh a chapati. I asked her v,ho gave her the chapatti, she u,os holding her lotickers as well and wus evusive. My daughter Nakato tolcl me she was Koyala who is said to deJile children. l'avin relused to tell me v,hat happened, she moved to the curtain u,here v,e sleep. I.followed her and removed the knicker.t she hud with her.

l'he knickers is pink in colour when I removed it, <sup>I</sup>Jbund it was wel. I askecl her hou' it got wet; il had slimy things. I got hold ofher and examined her.su,tu privale parts. h wos wet and slimy- I asked her u,ho hatl done thal b her und I started crying. She told me to forgive her and lhal she will noted it again, thcrl Kayala had told her to do it arul she had gone with hm.'l'hat Kayala had called her telling her he v,as going to sencl her somewhere. She told me he took her to his house, removed her knickers. She then slopped telling me and kept on kxtking dou,n. I knew il rrls sex. "

31.] 'lhe alleged contradiction that Pw3 stated that she wore blue leggings and yellow knickers whereas Pw4 stated that the victim had a pink panty and pink trouscr, is a minor contradiction. Furthermore, regarding the fact that PW 3 stated that it was after lunch and PW4 stated that it was at 1 I am in our considered view is minor too, given the fact the witnesses were testirying almost 2years from the commission of the offence. Though it has to be noted that the time is corroborated by the evidence of the appellant who stated that he was arrested between 12:00pm and 12:30pm which is within the time range of I l:00am stated by PW4.


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- <sup>5</sup> 32.1 We hold the above reproduced evidence of PW4 as corroborating Pw3 as to a sexual act having been done to hcr and that it was the appellant who did the act. - 33.1 Counsel for the appellant submitted that the evidence of PW4 could not bc admissible because it was hearsay evidcnce . In Omuroni vs. Uganda, (2002) 2 EA 508, court held that evidence of people who are not eye witnesses but who are first to be told of a crime of defilement is admissible. In Badru Mwindu vs. Uganda, Supreme Court Criminal Appeal No l5 of 1997, court held that hearsay evidence is admissible and can be relied upon if the totality of the prosecution evidencc points to the guilt of the accused person. - 34.) In this pa(icular case, we find that after rc-evaluating the cvidence on record, the trial judge properly guided hcrself on the position of the law on how to treat evidence of a single identifying witncss. Shc referred to cases like Abdullah Bin Wendo and anor vs. R 20 EACA 186, Bogere Moses and Anor vs. Uganda, No.l /1997 and Abudalla Nabulere vs. Uganda. 1979 HCB 77. The Judge properly applied the principles therein to the facts and arrived at ajust decision. - 35.] We find that the trial Judge gave a well detailed judgment on this matter and we cntirely agree with the findings thcrein.

This ground fails. 25

#### Ground 2

That the learned trial Judgc crrcd in law and fact when shc failed to consider the appellant's defence witness and wcnt ahead and convicted thc appellant.

'l'his ground was abandoncd. 30

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# Ground 3

That the lcaned trial Judgc crrcd in law and fact when she convicted the appcllant and scntenced him to twenty-two (22) ycars and onc 0l-month imprisonment in the obtaining circumstance

# Submissions for the appcllant

- 36.1 Counsel contended that thc leamed trial Judge ignored thc principles in Ninsiima Gilbert vs. Uganda, Crim. Appeal No. 180 of 2010, which in his view hinges on the fact that sentencing guidelines have to be applied taking into account past prccedents, uniformity, and consistency ofsentences. By way ol comparison in the aforementioned case, the court of appeal set aside the scntence of30 years and substituted it with a sentence of l5 years' imprisonment for a Z9-year-old appellant. Counsel cited Tiboruhanga Emmanuella vs. Uganda, CACA No. 655 of 2014, which was cited with approval in Anguyo Silver vs. Uganda, CACA No.38 of 2014, where it was held that the sentencing range of aggravated dcfilement without other aggravating factors ranged betwecn I 1 to l5 years. 10 15 20 - 37.) Counsel further submitted that the seriousness of the offence in the instant case is mitigated by the fact that the appellant was a first-time olfender, was remorselul and youthful. Counsel cited Kawesa lvan vs. Uganda, CACA No. 404 of20l9, where court held that the age ofan accused person is a material factor that may act as a mitigating factor. In this casc the appcllant was only 29 years. I Ie argued that a long period of imprisonment would not scrvc to reform him.

## Submissions for thc respondcnt

38.] Counsel for the rcspondent submitted that the sentence of22 years and one-month imprisonment passed against the appellant was neither harsh nor <sup>12</sup>lPage W

- <sup>5</sup> excessive. He submitted that while sentencing the appellant, the leamed trial Judge took into account the fact that the appellant was in his prime years and also took into account that the victim was a small child and that the appellant was old enough to be the father. Counsel cited Mutebi Ronald vs. Uganda, Criminal Appeal No. 38 of 2019, whcre this court found the sentencc of 23 years' imprisonment appropriate considering the lact that the victim was 6 years old. 10 - 39.] Counsel prayed that the sentcnce of 22 ycars and one-month imprisonment be upheld and the appeal dismissed.

#### Consideration of Court

- l.] We agree with the submissions of both parties regarding the position of the law on sentencing. It has to be noted that the scntencing guidelines do not take away the power ofcourt to exercise its discretion to pass an appropriate sentence. The appellate court will only interfere with a sentence if the trial courl has followed the wrong principles while sentcncing. 15 - 2.] We appreciate the fact that the trial Judge was very kcen in addressing all the guiding principles in sentencing. Guided by the principle of consistency under principle 6(c) ofthe sentencing guidelines, and the position ofthe law in Mutebi Ronald vs. Uganda, (Supra), we hold that the sentence 22 years was appropriate in this case. 20 - 3.1 This ground fails. 25 - 4.1 Consequently, the appcal fails.

# Wc so Ordcr

Dated at Kampala this 2023 /b day of OT

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HON. RICHARD BUTEERA DEPUTY CHIEF JUSTICE


HON. CHRISTOPHER GASHIRABAKE

**JUSTICE OF APPEAL**

HON. OSEAR KIHIKA **JUSTICE OF APPEAL**

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