Muhumuza v Uganda (Criminal Appeal 266 of 2014) [2024] UGCA 299 (16 October 2024)

# THE REPUBLIC OF UGANDA

# THE COURT OF APPEAL OF UGANDA AT FORT PORTAL

[Coram: Geoffrey Kiryabwire, JA; Muzamiru M. Kibeedi JA; Margaret Tibulya, JA] CRIMINAL APPEAL NO. 266 OF 2014

(Arising from the High Court Criminal Session Case No. 170 of 2010 at Fort Portal)

## **BETWEEN**

MUHUMUZA EMMANUEL....................................

## AND

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UGANDA RESPONDENT

(An appeal from the Judgment of the High Court of Uganda Mike J. Chebita J delivered on 27<sup>th</sup> September 2012)

## JUDGMENT OF THE COURT

#### Introduction

The Appellant was indicted and convicted of the offence of Aggravated Defilement Contrary to Sections 129(3)(4)(a) of the Penal Code Act, Cap 120.

#### **The Facts**

The Appellant on the 1<sup>st</sup> day of August 2010 at Mahezi LC1 in Kyenjojo District, performed a sexual act on the victim, a girl under the age of 14 years. The offence took place in the afternoon J. Clar in the victim's parents home. The Prosecution presented two witnesses, being the victim herself and her younger brother.

#### Decision of the Trial Court

The Trial Judge convicted the Appellant as charged and sentenced the Appellant to 21 years' imprisonment. Dissatisfied, the Appellant appealed against conviction and sentence on the following grounds: -

- 1. The learned trial Judge erred in law and fact when he disregarded major inconsistencies and contradictions in the prosecution evidence and therefore arrived at a wrong decision. - 2. The learned trial Judge erred in law and fact when he passed a harsh and manifestly excessive sentence of 21 years' imprisonment hence occasioning a miscarriage of justice.

The Respondent opposed the Appeal.

At the hearing, the Appellant was represented by Muhumuza Samuel Advocate and the Respondent by Ariong Stephen, Senior State Attorney, Office of the Director of Public Prosecutions (DPP). The Appellant was in Court.

The Parties sought the leave of Court to adopt their written submissions as their legal arguments in this Appeal which leave was granted.

#### Powers of the Appellate Court

This is the first appeal and the duty of the first appellate court is to reappraise the evidence and come up with its own inferences as per Rule 30(1) of the Judicature (Court of Appeal Rules) Directions S. I 13-10.

Further, we are alive to the duty of this court as a first appellate court as decided in the case of Kifamunte Henry v Uganda SCCA No. 10 of 1997 to reappraise all the evidence at trial and come up with our own inferences of law and fact. The basis for setting aside a sentence imposed by a trial court was generally set out in Ogalo s/o Owoura v R (1954) 21 EACA 270. In that appeal, the appellant appealed against a sentence of 10 years' imprisonment with hard labour which had been imposed for the offence of manslaughter. The East African Court of Appeal held that: -

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"... The principles upon which an appellate court will act in exercising its jurisdiction to review sentences are firmly established. The Court does not alter a sentence on the mere ground that if the members of the court had been trying the Appellant they might have passed a somewhat different sentence and it would not ordinarily interfere with the discretion exercised by a trial Judge unless as was said in James v R, (1950) 18 EACA 147, "it is evident that the Judge has acted upon wrong principle or overlooked some *material factor"*. To this we would also add a third criterion, namely, that the sentence is manifestly excessive in view of the circumstances of the case. An appropriate sentence should be proportionate to the offence with the gravest offences attracting the most severe penalties and lesser offences in terms of aggravation attracting less severe penalties. Courts have also added another principle of consistency in terms of equality before the law so that offences committed under similar circumstances with similar degree of gravity should attract the same range of sentences therefore precedents of the appellate courts are a relevant guiding actor..."

## In Kiwalabye versus Uganda, Criminal Appeal No. 143 of 2001 (SC) the Court held: -

"The appellant court is not to interfere with sentence imposed by a trial court which has exercised its discretion on sentence unless the exercise of the discretion is such that it results in the sentence imposed to be manifestly excessive or so low as to amount to a miscarriage of justice or where a trial court ignores to consider an important matter or circumstances which ought to be considered when passing the sentence or where the sentence imposed is wrong in principle"

This being a first appeal, it is this court's duty to reevaluate the evidence adduced in the lower court and arrive at its own conclusion. This duty has been restated in numerous authorities arising out of this court and the Supreme Court. See; Fr. Narsensio Begumisa and 3 Ors V. Eric Kibebaga SCCA No. 77 of 2002 (unreported): thus:

"The legal obligation of the 1<sup>st</sup> appellate court to reappraise the evidence is founded in the common law rather than rules of procedure. It is a well settled principle that on a 1<sup>st</sup> appeal, the parties are entitled to obtain from the appeal court its own decision on issues of fact as well as of law. Although in case of conflicting evidence, the appeal court has to make due allowance for the fact that it has neither seen nor heard the witnesses.

Ground 1: The learned trial Judge erred in law and fact when he disregarded major inconsistencies and contradictions in the prosecution evidence and therefore arrived at a wrong decision.

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## **Submissions of the Appellant**

Counsel for the Appellant argued that the trial Judge erred by disregarding significant inconsistencies in the evidence of the victim (PW3) and Ategeka Jaffari, the victim's 13 year old brother (PW4). These inconsistencies, according to the appellant, go to the root of the matter and should have led to the acquittal of the accused. Ategeka (PW4) had not mentioned whether he witnessed the defilement taking place, while Mubarak Kugonza the father of the victim (PW5) merely testified generally about what he was told had allegedly taken place. Counsel for the Appellant therefore submitted that the evidence of Kugonza (PW5) was hearsay and should have been rejected as it contradicts Section 59 of the Evidence Act.

# **Submissions of the Respondent**

Counsel for the Respondent submitted that the inconsistencies highlighted by the appellant are minor and do not affect the substance of the prosecution's case. Counsel for the Respondent further submitted that the Respondent emphasizes that the evidence adduced by the Victim (PW3) and her brother Ategeka (PW4) is direct evidence and provides sufficient proof of the appellant's guilt. They argue that the discrepancies regarding the bed where the offense occurred are immaterial.

Counsel argues that the evidence of PW5 is not hearsay but rather direct evidence under recognized exceptions to the hearsay rule.

# **Findings and decision of Court**

We have addressed ourselves to the submissions of both the Appellant and Respondent and for that we are thankful.

# **Contradictions and Inconsistencies**

In Kato Godfrey Kajubi vs Uganda, Supreme Court Criminal Appeal No. 20 of 2014, the Supreme Court found that:

"Grave inconsistences or contradictions in the evidence adduced by the prosecution are usually, as a general principle resolved in favour of the accused person. Such inconsistences or contradictions are the ones that go the root of the case. However, minor inconsistences or contradictions that can be explained away, and do not affect the main substance of the prosecution's case, should be ignored."

In the case of Kato, John Kyambadde and another vs. Uganda, Supreme Court Criminal Appeal No. 0030 of 2014, it was held:

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"The law of contradictions and inconsistencies is well settled. Major contradictions and inconsistencies will usually result in the evidence of the witnesses being rejected unless they are satisfactory explained away. Minor ones on the other hand will only lead to rejection of evidence if they point to deliberate untruthfulness."

In addition, in the case of Alfred Tajar vs. Uganda EACA Criminal Appeal No.167 of 1969, court held:

"... It is trite law that minor inconsistences unless they point to deliberate untruthfulness on the part of the prosecution witness, should be ignored and that the major ones, which go to the root of the case, should be resolved in favour of the accused "

It is our finding that the testimonies of whether the alleged defilement took place on the father's or brother's bed is minor because the evidence is clear that the alleged act took place in the father's house. Furthermore, the evidence of whether the brother was kicked and Appellant ran away or was pushed aside and then the door closed on him when he entered the house and witnessed the crime also is minor. We find no evidence that that the brother was deliberately untruthful in his testimony to render his testimony unsafe.

#### **Hearsay Evidence**

Under Section 59 of the Evidence Act Cap 6, "oral evidence must, in all cases whatever, be direct; that is to say—(a)if it refers to a fact which could be seen, it must be the evidence of a witness who says he or she saw it..."

On the contrary, it is a generally accepted principle of law that a report made by a child to a person in a place of responsibility as to whom the assailant is, is direct evidence and such evidence falls under the exceptions of the hearsay rule. In this case the brother and the victim reported the Appellant to their father as the perpetrator of the offence. Such a report can be regarded as hearsay.

This Honorable court has held in the case of Mayombwe Patrick vs. Uganda Criminal Appeal No. 17 of 2002 that a report made to a third party by a victim in a sexual offence where she identifies her assailant to a third party is admissible in evidence, such evidence can be used to corroborate other credible evidence.

Also in the case of Francis Omuroni vs Uganda, the Court of Appeal in Criminal Appeal No. 2 of 2000 held-

"... the evidence of a person whom the victim of a sexual offence reports to, is treated as <br>direct evidence..."<br>5 | Page

In addition, the father (PW5) also took the victim to report the offence to the police. participated in the apprehension of the Appellant.

It is also the finding of this Court that the alleged inconsistencies if any are minor.

We accordingly resolve this ground in the negative.

Ground 2: The learned trial judge erred in law and fact when he passed a harsh and manifestly excessive sentence of 21 years' imprisonment hence occasioning a miscarriage of justice.

## Submissions of the Appellant

Counsel for the Appellant submitted that the imposed sentence of 21 years is manifestly excessive and inconsistent with previous cases of a similar nature. Further, Counsel submitted that the Appellant requests a lenient sentence and seeks to have the time spent on remand considered in determining the final sentence.

# **Submissions of the Respondent**

Counsel for the Respondent maintains that the trial Judge acted within his discretion in imposing the sentence and that the sentence is appropriate given the circumstances of the case. Counsel for the Respondent highlighted the aggravating factor of the victim's age and argued that it justifies the sentence imposed.

Counsel for the Respondent acknowledged the Appellant's request for the time spent on remand to be considered but does not explicitly address this issue.

**Findings and Decision of Court**

Consistency in sentencing and adherence to Sentencing Guidelines

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In the case of Livingstone Kakooza v Uganda SC Criminal Appeal No. 17 of 1993 **[unreported]** it was held that an appellate court will only alter a sentence imposed by the trial court if it is evident it acted on a wrong principle or overlooked some material factor, or if the sentence is manifestly excessive in the case.

It has also been held that sentences imposed in previous cases of similar nature, while not being precedents, do afford material for consideration: See Ogalo S/O Owoura v R (1954) 21 E. A. C. A. 270.

This Court in Tusabe John Bosco vs Uganda Criminal Appeal No. 0425 of 2014 followed the Supreme Court authority of Aharikundira Yustina vs Uganda Criminal Appeal No. 027 of 2015 where the Supreme Court found as follows: -

"...it is the duty of this 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..."

This Court went on further to hold in Tusabe John Bosco (supra) that: -

"the sentences imposed in the court decisions we referred to earlier, for aggravated defilement, were in the range between 14 and 17 years."

In the above case, the Court of Appeal agreed to set aside the sentence of life imprisonment. The further held that: -

"... we observe that the higher end of sentences for aggravated defilement is 17 years' imprisonment according to the precedents."

The court in Tusabe (Supra) reduced the sentence from life imprisonment to 22 years since the aggravating factor of the victim being 3 and a half years stood out.

We have also taken into consideration the Constitutional (Sentencing Guidelines for Courts of Judicature) Practice Directions which are designed to promote the rule of law

in order to maintain a just, peaceful and safe society and promote initiatives to prevent crime. Paragraph 5(b) and (c) of the Sentencing Guidelines provides that one of the aims of sentencing is to deter a person from committing an offence again and to separate the offender from society where necessary. The court has a duty to protect the society and other children from such persons by withdrawing them from the community where necessary and there is nothing illegal on the part of the trial judge in taking such a decision.

We however note, that this Court and the Supreme Court has on various occasions upheld harsher sentences for this offence and thus following the principle of consistency with the view of instilling trust in the criminal justice system as we provide safety of our children that the sentence of 21 years as given be upheld.

In Segirinya Fulugensio Vs. Uganda Court of Appeal No. 549 of 2016, this court in passing a sentence of 40 years and 4 months noted that children ought to be protected and not violated.

In Kabazi Issa Vs Uganda Court of Appeal Criminal Appeal No. 268 of 2015,

This court found that a sentence of 32 years was neither harsh nor illegal.

In the case of Ouni john vs Uganda Court of Appeal Criminal Appeal NO. 237 of 2014 at Oulu. This Court did not interfere with the sentences of 20 years imposed upon the Appellant, because it was not harsh or excessive. The court maintained the sentence because the force used by the father against the victim had resemblance with offences of similar nature.

We further find that failure to mention the deduction of the period spent on remand did not occasion any injustice. This judgement was rendered on the 27th September 2012 about 5 years before the Supreme Court decision in Rwabugande Moses Vs Uganda, Criminal Appeal No. 25 of 2014 (dated 3<sup>rd</sup> March 2017) which imposed the requirement of a mathematical deduction of the time spent on remand.

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In this regard, it was decided in the case of Kirisa Moses Vs Uganda Supreme Court Appeal Criminal Appeal No 23 of 2016, which cited the case of Sebunya Robert and Anor Vs. Uganda Supreme Court Criminal Appeal No. 58 of 2016 that the decision in Rwabugande (supra) does not have a retrospective effect on sentences which were passed before it.

We have reviewed recent sentences of similar cases. In the matter of Rurema Deografius v Uganda Criminal Appeal 185 of 2011 [2024] UGCA 254, the Court upheld the sentence of 22 years for aggravated defilement where the Appellant defiled a 10-year-old girl.

In the recent case of Kwezira Jonan v Uganda Criminal Appeal No. 195 of 2014, delivered on 3rd September 2024, a sentence of 21 years for Aggravated defilement of an 8-year-old girl, was reduced to 18 years from the date of conviction.

In conclusion, we align ourselves with Tusabe John Bosco case (supra) and the recent case of Kwezira Jonan (supra). The Appellant was 23 years old at the time of committing the offence. The Court also considers the age of the victim at the time of the commission of the offence, and the fact that sexual offences are rampant and call for a deterrent sentence. Be that as it may the latest precedents give a range of approximately 14-22 years for similar offences of that nature.

On account of the aforesaid, we allow the appeal against sentence and set aside the sentence of the Trial Court. We shall now proceed to sentence the Appellant afresh pursuant to Section 11 of the **Judicature Act Cap 13** which provides as follows:

"... For the purpose of hearing and determining an appeal, the Court of Appeal shall have all the powers, authority and jurisdiction vested under any written law in the Court from the exercise of the original jurisdiction of which the appeal originally emanated."

The sentence of 21 years' imprisonment be quashed and replaced with that of 18 years' imprisonment as the appropriate sentence in the circumstances of this case. From that Sentence, we deduct the period of 2 years and 4 months spent by the Appellant on pre-trial remand. Accordingly, the Appellant shall serve a term of 17 years and 8 months from the date of conviction 27<sup>th</sup> September, 2012 taking into account all the mitigating and aggravating factors.

We resolve this ground in the affirmative.

**Final Decision**

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Having held as we have on the above issues Decide and Order that:

- 1. The Appeal partially succeeds. - 2. The conviction is upheld. - 3. The sentence imposed by the High Court is set aside. - 4. The Appellant shall serve a term of 17 years and 8 months from 27<sup>th</sup> September, 2012 the date of conviction.

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You have the right to Appeal to the Supreme Court.

$16t$ ...... this day of $\mathbb{Q}$ 2024. Dated at ......

Hon. Mr. Justice Geoffrey Kiryabwire

Hon. Mr. Justice Muzamiru Mutangula Kibeedi

$\mathcal{O}_{\mathcal{A}}$

Hon. Lady Justice Margaret Tibulya