Lubowa Mathias Boaz v Uganda (Criminal Appeal 64 of 2016) [2025] UGCA 166 (30 May 2025)

## THE REPUBLIC OF UGANDA

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

(Coram: Hellen Obura, JA, Christopher Gashirabake, JA Eva K. *Luswata, JA)*

### CRIMINAL APPEAL NO. 0164 OF 2016

### **BETWEEN**

LUBOWA MATHIAS BOAZ ::::::::::::::::::::::::::::::::::::

**AND**

**UGANDA :::::::::::::::::::::::::::::::::::**

(An appeal from the Judgment of the High Court sitting at Masaka in Criminal Session Case No.0046 of 2013 by Hon. Justice Margaret Tibulya delivered on 19<sup>th</sup> May, 2016)

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#### **JUDGMENT OF THE COURT**

#### **Introduction**

1] The Appellant was charged with aggravated defilement contrary to Section 129(3), (4) (a) of the Penal Code Act Cap 128. He was indicted, convicted and sentenced to 20 years' imprisonment.

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#### **Brief facts**

2] The brief facts of the case as discerned from the record and the judgment are that the victim (who we shall refer to as "NF") was at the material time aged about 12 years. On 21<sup>st</sup> April 2012, NF

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<sup>5</sup> in the company of other children went to the forest at Nkalwe Village to collect firewood. Later, PW2, YakobaKazoya and PW4, Nabuuma Luusi heard an alarm and when they responded, they found NF running out of the forest. She informed them that she had been defiled. PW4 learnt that NF's attackers had abandoned their motor cycle at a kraal. PW2 recovered it and took it to PW3 Nanziri Immaculate, the Chairperson of the area at the time. PW3 and PW4 individually examined NF and confirmed that she had been defiled. PW3 and Pw4 rung the police and Pwl, No.29239 Sgt Kiplimo George collected the motor cycle from PW3's home. Around the sarne time, the Appellant went to Kyotera Police Station and reported that his motor cycle had been stolen. Kyotera Police rung Rakai Police Station who informed them that they had recorded a complaint of defilement. The Appellant was accordingly detained and subsequently, in Kyotera police station, 3n identification parade was conducted, and NF picked out the Appellant as her assailant.

3l In his defence, the Appellant admitted that he was a bodaboda operator. That on 2I"t April 2OL2, he travelled with another person called Bbaale to one Kiweewa's farm to collect a sheep but found when the herdsmen had left the place. They tried to locate the herdsmen but failed. Upon return to the kraal, they found that their motor cycle was missing. Thinking that it had been stolen, they reported the loss to Kyotera Police Station who advised them to keep up the search. When they returned to follow up the issue, they were arrested and detained on allegations of defilement. The Appellant's defence was rejected

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<sup>5</sup> and following a full trial, he was convicted and sentenced as afore stated.

4) The Appellant being aggrieved with the decision of the High Court lodged an appeal premised on two grounds set out in the Memorandum of Appeal as follows: -

- That the learn ed trial Judge erred in laut an d fact when she did <sup>n</sup>ot properly eualuate all the euiden ce on record in regard to identification of the Appellant thereby reachin g arl un just con clusion of con uicting the Appellan t occasioning a miscaruiage of justice. L - LL. That the learn ed trial Judge erred in laut an d fact uthen, she sentenced the Appellant to 20 years' imprisonment uthich was man ifestly harsh an d excessiue thereby occasion ing <sup>a</sup> miscarriage of j ustice.

## Representation

5] At the hearing of the appeal, the Appellant was represented by Naluswa Joshua on State brief, while Ssemalemba Simon Peter, an Assistant Director of Public Prosecutions, appeared for the Respondent. Both parties filed written submissions which were adopted with leave of Court. We in addition considered authorities they filed, and more sourced by the Court.

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# s Ground one

## Appellant's submissions

- 6] By way of introduction, Mr. Naluswa Joshua pointed us to our duty as a first appellate Court which is to re-evaluate the evidence and come to an independent conclusion on the facts and the law, taking into account that the court did not see or hear the witnesses. For guidance, counsel cited Regulation 3O (1) of the Rules of this Court and Henry Kifamunte vs Uganda, SC Criminal Appeal No. 1O of L997 - 7l For ground one, Mr. Naluswa submitted in particular that the Appellant's participation in the commission of the offence was not made out since the process of the identification parade was flawed. In addition, counsel faulted the Court for relying on uncorroborated prosecution evidence. He recounted the Appellant's testimony that while in custody at the Kyotera Police Station, he was called out of the cells by the OC Police as the victim had been brought in to identify her attacker. At that point, other inmates offered them shirts to put on but the OC refused. He was directed to stand with seven other inmates in the presence of some police officers. The Appellant added that they were told to turn to the wall, and after he had done so, he heard a voice say "that one" and when he turned, he saw a girl pointing at him. He was then ordered to return to the cell. Counsel argued that as a single identifying witness, there was a high possibility of mistaken identity, and the Appellant's conviction on such evidence occasioned a miscarriage of justice.

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- <sup>5</sup> Bl Mr. Naluswa also referred to the evidence of PW4 who testified that she was informed by police that if she failed to identify the attacker, she would be arrested because she would be considered a liar. In his view, such a testimony signified that the identification was not made voluntarily leading to compromise in the accuracy of the prosecution evidence, hence undermining the integrity of the identification process. - 9] Citing the decision of Abudallah Nabulere & 2 Others vs Uganda, CA Criminal Appeal No. 9 of L978, counsel submitted that the trial Judge ought to have cautioned himself before making a decision that the Appellant was positively identified. That such caution was advised in the above case to guard against the possibility of mistaken identity, even for those witnesses that appeared to be convincing. That the Supreme Court advised a thorough examination of the conditions under which the identification was made, includit g factors like duration, distance, lighting and the witness's familiarity with the accused. Mr. Naluswa submitted that the same were not applied by the trial Court in this case even when it was confirmed during cross examination of PW4, that NF did not know the Appellant before the time she was attacked or before she identified him at the identification parade. Since NF was not familiar with the Appellant, and she in fact did not testify at the trial, her alleged identification resulted into an erroneous decision. - 101 Counsel submitted further that the identification parade was not properly conducted and cited the case of Sentale vs Uganda, [1968] EA 365 at 396 in that regard. In particular, some of the

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- <sup>5</sup> safe guards recommended in that case which include; legal representation of the suspect, placement of the suspect among individuals of similar appearance, and preventing witnesses from seeing the suspect prior to the parade, were not followed. To emphasize that submission, counsel in addition cited Stephen Mugume vs Uganda, Criminal Appeal No. 20 of L995. - <sup>111</sup>Counsel further cited the case of Bogere Moses & Another vs Uganda, SC Criminal Appeal No. OO 1 of L997 for the preposition that before drawing the inference of the accused's guilt from circumstantial evidence, court must be sure that there are no other existing circumstances that would weaken or destroy the inference. That in this case, although the trial Judge cautioned herself, she relied on un corroborated circumstantial evidence of PW4 and PW3. That in fact, upon a thorough examination of their evidence, there was no circumstantial evidence implicating the Appellant or placing him at the crime scene, since the victim did not testify at the trial. - L2l In conclusion, counsel prayed that this Court be pleased to reevaluate the entire prosecution evidence with regard to the identification of the Appellant, especially in regard to participation of the Appellant in committing the offence.

## <sup>25</sup> Respondent's submissions

13] In response, Mr. Ssemalemba Simon Peter opposed the appeal and submitted that the learned trial Judge reached a correct conclusion with regard to the Appellant's participation in the commission of the offence.

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- 5 10 15 L4l To elaborate, counsel submitted that the evidence on record. indicates that NF was attacked by men who were on a motorcycle. Her colleagues took off while raising an alarm prompting the assailants to run off abandoning their motorcycle which was then impounded by police. Counsel continued that the Appellant in the company of others went to police, and reported that their motorcycle had been stolen, but that report was not made to the nearest police station. However, by the time the theft of the motorcycle was reported, a case of defilement had already been filed at the police and it was stated in that report that the assailants had abandoned their motorcycle. Counsel added that the assailants were arrested and NF was called to identify the one who had defiled her. - 15] Counsel pointed out that the Appellant did not dispute the fact that the victim identified him out of several men he was placed with and neither did he dispute ownership of the impounded motorcycle. Mr. Ssemalemba discounted the submission that during identification at the police station, the victim was told to pick the Appellant, but she did so on her own, and it was not a coincidence that she picked the Appellant whose motorcycle was left at the crime scene. - 25 16] In conclusion, counsel prayed that this Honourable Court finds no merit in ground one of the appeal, and that the s€une be dismissed.

# is and decision of Court

L7l We have carefully studied the record, considered the submissions for either side, as well as the law and authorities cited to us, and those not cited but which we find relevant to this matter. We are alive to the duty of this Court as a first appellate Court t

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<sup>5</sup> the evidence on record and reconsider the materials before the trial Judge, including the decision of the trial Court, and then come to our judgement. See: Rule 3O(1Xa) of the Judicature (Court of Appeal Rules) Directions S. I 13-10. We do agree and follow the decision of the Supreme Court in Kifamunte Henry vs Uganda, (Supra), where it was held that on a first appeal, this Court has a duty to:-

> reuieut the euidence of the ca.se and to consider the materials before the trial Judge. The appellate court must then make up its own mind not disregarding the judgement appealed from, but carefullg weighing and considering it."

- 18] The Appellant alleges in the first ground of appeal that in convicting the Appellant, the ingredient of participation was not satisfied. Counsel raised three legal and factual points for consideration to wit:- - The trial Judge relied on uncorroborated evidence of a single identifyirrg witness 1 - The other prosecution evidence was merely circumstantial and not sufficient to sustain the conviction. 1l

The identification parade through which the Appellant was pointed out as the victim's assailant, was not properly conducted 111

19] We perceive from the record, that NF as the single eye witness to the defilement did not testify at the trial. The prosecution case was thus purely based on circumstantial evidence. Such evidence can be described as

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"....... direct evidence of a fact from which a person may reasonably infer the existence of another fact. A person's guilt of a charged crime may be proven by circumstantial evidence, if that evidence, while not directly establishing guilt, gives rise to an inference of guilt beyond reasonable doubt."

See People vs Bretagna, 298 N. Y. 323, 325 (1949) followed in Layet Lilly Grace vs Uganda, CA Criminal Appeal No. 178 of 2011 and Rukusya Ronald & Anor vs Uganda, CA Criminal Appeal No. 94 of 2017.

20] The Court in Byaruhanga Fodori vs Uganda, SC Criminal 15 Appeal No. 18 of 2002, warned that such evidence must be treated with considerable caution. It was held as follows: -

> "It is trite law that where the prosecution case depends solely on circumstantial evidence, the Court must, before deciding on a conviction, find that the inculpatory facts are incompatible with the innocence of the accused and incapable of explanation upon any other reasonable hypothesis than that of guilt. The Court must be sure that there are no other coexisting circumstances, which weaken or destroy the inference of guilt." Also see S. Musoke versus R [1958] E. A 715, Teper vs R. [ 1952] A. C. 480."

21] As pointed out for the Appellant, the law regarding single identification evidence, was well explained in the case of Abudallah Nabulere & 2 others vs Uganda (Supra) and many others that have followed it. The Justices of Appeal in **Abudallah Nabulere (Supra)** held inter alia as follows:

> "A conviction based solely on visual identification evidence invariably causes a degree of uneasiness because such evidence can give rise to miscarriages of

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justice. There is always the possibility that a witness though honest may be mistaken. For this reason, the courts have over the years evolved rules of practice to minimise the danger that innocent people may be *wrongly convicted.* $\ldots$ *The testimony of a single witness regarding identification must be tested with the* greatest care. The need for caution is even greater when it is known that the conditions favouring a correct identification were difficult. Otherwise, subject to certain well known exceptions, it is lawful to convict on the identification of a single witness so long as the judge adverts to the danger of basing a conviction on such evidence alone..... Where the case against an accused depends wholly or substantially on the correctness of one or more identifications of the accused, which the defence disputes, the judge should warn himself and the assessors of the special need for caution before *convicting the accused in reliance on the correctness of* the identification or identifications. . . . In our judgment, *when the quality of identification is good, as for* example, when the identification is made after a long *period of observation or in satisfactory conditions by a* person who knew the accused well before, a court can *safely convict even though there is no 'other evidence to* support to identification evidence; provided the court *adequately warns itself of the special need for caution. If a more stringent rule were to be imposed by the courts, for example if corroboration were required in every case* of identification, affronts to justice would frequently occur and the maintenance of law and order greatly hampered."

[22] It is not true as submitted for the Appellant that when evaluating this evidence, the trial Judge did not administer a caution against relying on such evidence. She did so at page 18 of the record when she stated that:

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"The law is that a court ought not to base a conviction on uncorroborated evidence of a single identifying witness without warning itself of the danger of so doing, CHILA & VS R. [1967] EA 722. The court must, after warning itself of the danger of convicting without corroboration, express itself to be convinced of the truth of the child's story".

She then observed that in this specific case, the victim did not testify. The ratio in **Nabulere (supra)** would thus not be directly applicable here. Instead. the Judge considered other circumstantial evidence that an abandoned motor cycle was picked up and retained by NF's relatives after she had reported the defilement. It was in fact the same motorcycle the Appellant reported at the Kyotera Police Station as having been removed from where he had left it when he went in search for herdsmen he had planned to deal with. He suspected that it had been stolen. In addition, the Judge considered the evidence that the Appellant and another ran away after committing the offence, was not challenged. $\mathrm{She}$ addition found that the $\quad\text{in}\quad$ evidence $\quad\text{ of }\quad$ identification was sufficiently corroborated by the admitted fact that the Appellant was in the area where the defilement took place on the day in issue, and that he had a motorcycle which he left at the same place.

23] The absence of NF as the victim at the trial would not by itself weaken the prosecution case. It was for example held in Abale Muzamil vs Uganda, CA Criminal Appeal No. 39 of 2014, followed in Kaggwa Patrick Salongo vs Uganda, CA Criminal Appeal No. 426 of 2016, that the absence of the key witness, (in this case a victim of sexual violence) would not necessarily point to a weak prosecution case. The Court is bound to consider all

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- <sup>5</sup> evidence placed before it to incriminate an accused person, and if any presented for the defence. We shall therefore re-examine all other evidence presented to confirm that the Appellant was properly identified as the one who defiled NF on 2Lln/2012. - 241 PW4 testified that at around 3pm on the fateful day together with PW2 and others, she answered the alarm of two young girls who reported that certain unknown men had run after them and detained NF in the forest. The group moved into the forest and before going fx, they encountered NF who reported that a man had defiled her. The group begun to search for the attackers and while doing so, they found another group of people who informed them that the attackers had run off but abandoned a motorcycle at Kiweewa's kraal. PW2 aurrd PW4 were part of the group that went to Kiweewa's Kraal, confiscated the motor cycle and handed it over to PW3, the Secretary for Women's affairs in their village. Both PW3 and PW4 examined NF and confirmed she had been defiled. After receiving the complaint, PW3 prepared a forwarding letter and then handed over the motor cycle to PW 1, a police officer, for further management of the case. L0 15 20

251 None of those witnesses knew or had ever seen the Appellant before the incident. PW2 admitted that he was not a resident of the area and NF first came to know him and his name the sarne day she was defiled. He also admitted that NF reported that there was no verbal exchange between her and the Appellant during the defilement and PW3 testified that NF described him as a dark fairly fat man with red eyes. The ,Judge did not in her judgment indicate that she linked that description to the man in the dock. Therefore,

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- <sup>5</sup> identification of the Appellant as NF's assailant would be the identification parade and other circumstantial evidence that the Judge considered. - 26) PW 1 testified that the identification parade was carried out at the Kyotera Police Station. PW4 attended the parade with NF and testified that there were about 30 men in the parade who were then directed by the police to face the wall and NF requested to point out her assailant. She added that they were told by police that if NF failed to identify her assailant, they would be considered as liars and detained. - 27) It is true as pointed out by the Appellant's counsel that such an intervention by the police would ordinary point to undue influence. However, that alone would not impair NF's judgment for according to PW3, when she questioned PN about her ordeal, the child explained that two unknown men pursued her and two other girl friends who managed to escape. One man continued pursuing her and when he managed to grab her, he informed her that he had a gun and threatened that he would shoot her if she made any noise. That after defiling her, he took out a handkerchief and cleaned her private parts. PW4 added that NF informed her that her assailant used his cell phone to take her photograph after the defilement. That would have given NF sufficient time to remember the Appellant's appearance and positively identify him at the parade. That notwithstandirg, there was other circumstantial evidence that the Judge considered as incriminatirrg the Appellant. 15 20 25

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- <sup>5</sup> 2Bl Followi.rg the lead of some villagers, PW2 and PW4 found and then confiscated a motor cycle from Kiweewa's kraal on the sarne date. It was handed over to the police at the Kabira Police post which would be the nearest police station to the crime scene. The Appellant admitted being in Kiweewa's kraal on the same date for the purpose of picking up a sheep. He was not clear at what point or time he left the kraal to look for Kiweewa's herdsmen or when he and his companion Bbaale discovered the cycle was taken. What is clear is that he later showed up at Kyotera Police Station to report that he suspected his cycle stolen, the sarne cycle found in Kiweewa's kraal. 10 15 - 29) Therefore, by his owrr testimory, the Appellant placed himself at the crime scene at the relevant time the offence was committed. It is strange that after discovering that the cycle was missing, the Appellant and his companion chose to use anothe r bod"a bod,arider to return to Bakka Town and then back to their home. They only reported the missing cycle later at Kyotera, a station positioned <sup>a</sup> distance away from the crime scene. A person alarmed at the disappearance of a prized possession would immediately report to the area local council officials and the nearest police post, but not return to their home and then make a report later. A reasonable explanation of the Appellant's behavior would be that after realizrng that many people had responded to the children's alarm, they abandoned the cycle and left the area, only to resurface at the Kyotera Police Station to report that it had been stolen. piecing the circumstantial evidence together, there could be no other plausible hypothesis than that it was the Appellant who defiled NF after threatening to shoot her, then disappeared from the area.

14 4LrL <sup>5</sup> 301 Therefore, even in the absence of NF's testimony, the circumstantial evidence was properly evaluated by the Judge to conclude that the Appellant participated in defiling NF on the afternoon of 2 1"t April 20t2.

31] Accordingly, we find no merit in ground one and it tails.

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## Ground 2

### Appellant's submissions

321 Mr. Naluswa submitted that the learned Judge passed a harsh and excessive sentence when she failed to take into account the mitigating factors advanced on behalf of the Appellant and the period spent on remand. That at 42 years of age, his client was of a relatively young age capable of reformirrg and being re-integrated into society. He added that the Appellant who had a wife and five children and being the bread winner of his family, a long term custodial sentence would not work in his favour but rather, turn him into a hardened person. By comparison, Counsel pointed us to some cases where less harsh sentences were imposed for aggravated defilement. He cited for example, Tusabe John Bosco vs Uganda, CA Criminal Appeal No. O45 of 2o15 where a 22-year old Appellant was sentenced to 22 year's imprisonment for defiling a girl aged 3 years and a half. Also that of Biringi Moses vs Uganda, CA Criminal Appeal No. L77 of 20 14 where this Court substituted a sentence of 30 years' imprisonment for aggravated defilement, with a sentence of 12 years' imprisonment. That in light of those precedents, the trial Judge did not address her mind to cases of a 15 20 25 30

- <sup>5</sup> similar nature which would rend.er the sentence imposed on the Appellant, illegal. - <sup>331</sup>In conclusion, counsel prayed that this Honourable Court be pleased to allow the appeal, quash the conviction, set aside the sentence and substitute it with an appropriate sentence.

## 10 Respon dent's submissio ns

34ll In response, Mr. Ssemalemba submitted that the sentence was not excessive or harsh because the maximum sentence for the offence is death. He in turn cited a few decisions to illustrate that harsher sentences have previously been imposed for the same offence. He cited for example, Bashir Burahuri vs Uganda, CA Criminal Appeal No. 25 of ?OLS where this Court sentenced a S2-year-old Appellant to 40 years'imprisonment for defilement of a L2-year-old girl. In Bachwa Benon vs Uganda, CA Criminal Appeal No. <sup>396</sup> of 2OL4, Bonyo Abdul vs Uganda, SC Criminal Appeal No. 07 of 2OLl and Kaserebanyi James vs Uganda, (2OL4l UGCA g9 sentences of life imprisonment were upheld in cases of aggravated defilement.

<sup>351</sup>In conclusion, counsel prayed that this Court should consider maintaining the sentence of 20 years' imprisonment imposed in this case and for that reason, the appeal be dismissed.

## Anal and decision of court

<sup>361</sup>Under this ground, counsel for the Appellant contended that the trial Judge sentenced the Appellant to 20 years' imprisonment which sentence he considered manifestly excessive and harsh given that she did not consider the mitigating factors. co <sup>V</sup>ersely,

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- <sup>5</sup> Respondent's counsel provided authorities in which more severe sentences were handed down and maintained that the sentence was in the circumstances appropriate and the Court need not interfere with it. - 371 An appropriate sentence is a matter of discretion of the sentencing Judge and each case presents its own facts upon which a Judge exercises that discretion. See Karisa Moses vs Uganda, SC Criminal Appeal No. 23 of 2OL6. That notwithstandirg, through long term precedent, principles guiding an appellate Court when considering any appeal on the severity or legality of sentence are now well settled. As pointed out for the Appellant our powers to intervene are quite limited. We may interfere only in cases where it is shown that; 10 15 - i. The sentence is illegal - ii. The sentence is manifestly harsh or excessive - iii. Where there has been failure to exercise discretion - iv. Where there was failure to take into account a material factor - v. Where an error in principle was made.

See Ogalo S/O Owoura vs R (195412L E. A. CA. 27O, Kyalimpa Edward vs Uganda, SC Criminal Appeal No. 10 of 1995, Kamya Johnson Wavamuno vs Uganda, SC Criminal Appeal No. L6 of 2OOO and Kiwalabye vs Uganda, SC Criminal Appeal No. 143 of 2o,o^L.

38] We are also mindful of the decision of the Supreme Court in Kakooza vs Uganda, SC Criminal Appeal No. LT of 1993, that sentences imposed in previous cases of a similar nature, while not 30

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being precedents, do afford material for consideration. Even then, sentencing cannot be a mechanical exercise and uniformity is hardly possible. See Aharikundira Yustina vs Uganda, SC Criminal Appeal No. 27 of 2O15. Therefore, when considering <sup>a</sup> prayer to reduce sentence, we are best placed to consider the facts that led to the indictment as well as what was stated during the allocution proceedings. The state prosecutor prayed for a maximum sentence for the reason that the victim whose uterus was damaged, has never fully recovered from the defilement. The State considered the Appellant to be a dangerous man who should be left behind bars. In mitigation, Appellant's counsel stated that the convict was a young man of 37 years, with young children. His counsel added that as a first offender, he had the propensity to reform, he had by the time of conviction spent 3 years on remand, and prayed for <sup>a</sup> lenient custodial sentence. 10 15 5

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<sup>391</sup>The trial Judge pronounced a lairly brief sentencing ruling as follows: -

#### S. EJV?EJVCE..

I ha"ue considered all that was said. in aggrauation and in mitigation of sentence. There cqn be no d,oubt that the offince of aggrauated defilement is graue, being that it is committed against a young chitd.. It is bound, to affect herfor a long time. There can be no excuse from a. matltre man of a2 Aears raping a l2-year-old,

girl. The qccused does not deserue ana lenience. I haue considered the period spent on remand, about s/ 4 years, and sentence the accused to 20 years' imprisonment.

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#### Right of appeal explained.

Sgd: Hon Lady Justice Margaret Tibulya Judge <sup>1</sup>5.6. 16

- 15 40] We are not prepared to consider the sentence as illegal because the trial Judge clearly appreciated the remand period before deciding on an appropriate sentence. She followed the correct legal position binding sentencing courts before the Supreme Court decision in Rwabugande Moses vs Uganda, SC Criminal Appeal No. 25 of 2OL4. It also appears that in her ruling, the trial Judge appreciated what had been stated by either counsel during the allocution proceedings. However, she proceeded to give more prominence to the aggravating factors and what she considered to be the damaging effect the offence would have on the victim. There was hardly any emphasis on mitigation which would be a serious flaw. However, that would not entirely discredit the sentence imposed because the aggravating factors here clearly outweigh what was stated in mitigation. The facts upon which the Appellant was convicted are that being a 42 year old man, he had sexual intercourse with , a glrl aged 12 years' old. He used considerable force in doing so, for he threatened her with death if she raised any resistance or alarm. We see no miscarriage of justice in the Judge being persuaded that the facts would merit commensurate punishment. 20 25 30 - 4Ll Even then, the trial Judge refrained from imposing the maximum sentence of death. Her decision related well to the principle of

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consistency raised by both counsel in their submissions as $\overline{5}$ enunciated in Aharikundira Yustina vs Uganda (supra). It was held in that case that:

> "... it is the court while dealing with appeals regarding sentencing to ensure consistency with cases that have similar facts. Consistency is a vital principle of $a$ sentencing regime. It is deeply rooted in the rule of law and requires that laws be applied with equality and without unjustifiable differentiation."

- 42] We have accordingly considered previous decisions with somewhat 15 similar facts, for example that of Anguyo Siliva vs Uganda, CA Criminal Appeal No. 038 of 2014, in which an Appellant aged 32 years was sentenced to 21 years and 28 days in prison for defilement of a girl aged 14 years. In Mukundane Edson Vs Uganda, CA Criminal Appeal No. 669 of 2014, this Court 20 confirmed a sentence of 25 years' imprisonment for the defilement of a girl under 14 years. In Lwanyanga Joseph vs Uganda, CA **Criminal Appeal No. 535 of 2016**, the Appellant was sentenced to 22 years' imprisonment for defiling a 7-year-old child. - 43] In addition, we would consider the provisions of the $3<sup>rd</sup>$ schedule of $25$ the Constitution (Sentencing Guidelines of the Constitution) for **Courts** $\mathbf{of}$ **Judicature** (Practice) Directions, 2013 (Sentencing Guidelines). It provides that after considering both the aggravating and mitigating factors, the sentencing range for aggravated defilement is 30 years to death as the maximum 30 sentence. Accordingly, we consider that a sentence of 20 years' imprisonment especially in relation to the facts presented here and compelling precedent, is well within the advised range.

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- <sup>5</sup> 441 In the circumstances that we have carefully elaborated here, we find the sentence to be neither harsh nor manifestly excessive as claimed. We find no reason to fetter the discretion of the trial Judge to interfere with the sentence imposed. The Appellant shall continue to serve the 2O-year sentence that was meted out by the <sup>10</sup> trial Court.

45] Accordingly, we find no merit in the appeal and it is dismissed.

Dated this .. S9dayor ......., 2025. 15 HELLEN ABULU OBURA JUSTICE OF APPEAL 20 i t' <sup>25</sup> CHRISTOPHER GASHIRABAKE JUSTICE OF APPEAL 30 K. A JUSTI F APPEAL 35 I oaoaaotoaaaaa aoaaaooaoa aoooooaaoa oaoaaaaaaaaaa aaaaaaaaooaaaoa

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