Munubi v Uganda (Criminal Appeal 350 of 2016) [2024] UGCA 300 (16 October 2024)

# THE REPUBLIC OF UGANDA

# THE COURT OF APPEAL OF UGANDA AT FORT PORTAL

# [Coram: Geoffrey Kiryabwire, Muzamiru M. Kibeedi & Margaret Tibulya,

$JJA$

# CRIMINAL APPEAL NO. 350 OF 2016

# (Arising from the High Court Criminal Session Case No. 174 of 2012 at Masindi)

### **BETWEEN**

**MUNUBI CHARLES .............** ......................................

#### AND

<table>

UGANDA RESPONDENT

(An appeal from the Judgment of the High Court of Uganda Hon. Justice A. F. Rugadya Atwoki J. delivered on 22/9/2016)

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# JUDGMENT OF THE COURT

# **Introduction**

The Appellant was indicted and convicted of the offence of aggravated defilement contrary to Sections 129(3) and 4(a) of the Penal Code Act Cap 120.

# **The Facts**

The Appellant on the 27<sup>th</sup> day of April 2012 at Jeeja Village in the Kiryandongo District, performed a sexual act with the victim under the age of 12 years.

The victim, was accosted while fetching water. She was dragged into the bush and sexually assaulted by a man she identified only by his appearance. The victim

reported the incident to her mother, who found evidence of the assault at the scene. The mother identified the attacker as Munubi Charles and reported the crime to local authorities. The Appellant was arrested while attempting to flee the area. At trial, he denied the charges, and the prosecution presented evidence from six witnesses. The Appellant was convicted of the offence.

# **Decision of the Trial Court**

The Trial Judge sentenced the Appellant to 36 years' imprisonment. Dissatisfied, the Appellant appealed against conviction and sentence on the following grounds: -

1. That the Judge erred in law and in fact when he failed to properly and adequately evaluate the evidence regarding the Appellant's identification by a single identifying witness and erroneously found the Appellant guilty of aggravated defilement thereby occasioning a miscarriage of justice. 21 Page

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2. That the Judge erred in law and fact when he imposed to the Appellant a sentence of 36 years which manifestly harsh and excessive thereby occasioning a miscarriage of justice.

Wherefore the Appellant prays that

- This appeal be allowed. $(a)$ - $(b)$ The Appellant's conviction be quashed and sentence set aside and the Appellant be set free unless held on other charges; or - In the alternative but without prejudice to the above the sentence of be $(c)$ set aside and be substituted with such lesser sentence as the Court may deem fit.

The Respondent opposed the Appeal.

At the hearing, the Appellant was represented by Cosma A. Kateeba and the Respondent by Happiness Ainebyona Chief State Attorney.

### **APPLICATIONS**

At the hearing, Counsel for the Appellant prayed that the Notice of Appeal which was filed be validated. The Respondent did not object to this application Consequently, the Notice of Appeal was validated by Court.

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Both parties also prayed that their written submissions be adopted by this Court as their oral arguments in the determination of the Appeal. The Court upheld the prayer for it to rely on the written submission of the Parties in determing the Appeal.

## 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 SCCS 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 were 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 -

"... 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 $\sqrt$ $\bigwedge^{d \text{ SO}}$

$4$ | Page **M** 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) this 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

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principle that on a $1^{st}$ 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: That the Judge erred in law and in fact when he failed to properly and adequately evaluate the evidence regarding the Appellant's identification by a single identifying witness and erroneously found the Appellant guilty of aggravated defilement thereby occasioning a miscarriage of justice.

#### Submissions of the Appellant

Counsel for the Appellant argues that the trial Judge erred in finding the Appellant guilty based on the victim's identification alone. They emphasize the need for corroborative evidence in such cases, especially when the victim and the accused are strangers. Counsel for the Appellant points out that no identification parade was conducted and that the victim's description of the attacker was not sufficiently detailed.

Counsel for the Appellant also argued that the prosecution failed to challenge their defence of alibi. Counsel argued that the prosecution did not present evidence placing the Appellant at the scene of the crime, especially considering the absence of testimony from the victim's sisters who were present when they met the attacker. The Appellant contends that the lack of corroboration for the victim's identification and the failure to disprove their alibi warrant the acquittal of the charges.

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#### **Submissions of the Respondent**

Counsel for the Respondent argued that the prosecution successfully proved the three elements of aggravated defilement being the victim's age, the sexual act, and the accused's participation. The counsel for the Respondent emphasized that the victim identified the Appellant with a detailed description of him and the Appellant's attempt to flee the scene. Counsel argued that the trial Judge correctly evaluated the evidence and applied the relevant legal principles, including those related to single identifying witnesses and circumstantial evidence.

### **Findings and decision of Court**

We have reviewed the evidence before the Trial Court and the resultant judgment as we are required to do as the first appellate court.

For the prosecution to prove the offence of aggravated defilement, the prosecution should prove the following ingredients

- 1. That the victim was below the age of 14. - 2. That a sexual act was performed on the victim. - 3. That the accused person participated in the commission of the offence.

## **Identification evidence**

Counsel for the Appellant submitted that at the trial, the prosecution presented 6 witnesses including the victim (PW5) to prove the ingredients of the above

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offence. Both the prosecution and counsel for the accused agreed that a sexual act was committed against the victim of below 14 years. However, the identification of the Appellant as the perpetrator of the offence was contested.

According to PW 5, she testified on page 18 of the Record of Proceedings that she had gone to fetch water with her sisters Olivia and they met the Appellant. After fetching water PW5 returned alone pushing a bicycle and that is when the Appellant attacked her and pushed her in the bush and later undressed her and sexually assaulted her. During the incident which lasted between 40 minutes to an hour the victim was able to identify her attacker. The trial Judge found that the Appellant had been properly identified by PW5.

In the present case, no identification parade was held for the victim to identify her attacker. In Stephen Mugume v. Uganda, Criminal Appeal No. 20 of 1995 (SC), the Supreme Court held as follows:

"It is, we think, common sense that a witness would normally not be required to identify a suspect at a parade if the witness knows the suspect whom he/she saw commit an offence. Identification parades are, as a practice, held in cases where the suspect is a stranger to the witness or possibly where the witness does not know the name of the suspect. In such a case the identification parade is held ... to enable the identifying witness confirm that the person he has identified at the parade is the same person he had seen commit an offence."

In Arinaitwe Julius vs. Uganda, Court of Appeal Criminal Appeal Nos. 0389 & 717 of 2015, the law on identification was restated thus: -

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Jor "Before relying on the evidence of identification, the court ought to satisfy itself whether the conditions under which identification is claimed to have been made were favourable or difficult. And considering whether favourable or unfavourable conditions existed, the court should particularly examine the length of time the witness observed the assailant, familiarity of the witness with the assailant, the quality of light and material discrepancies in the description of the Appellant by the witness."

Only PW5 testified as to having seen the Appellant. It is trite law that such evidence of a single identifying witness must be corroborated as a matter of fact see the case of Obeli v. Uganda, [1965] E. A. 622

Counsel for the Respondent argued that, this is a clear case of a single identifying witness. The law on a single identifying witness was clearly stated in the case of Abdallah Nabulere V Uganda CA NO. 12/1981, Abdallah Bin Wendo and another V R (1963)20 EACA 166, Bogere Moses and Another V Uganda CA No. 1/1997, it was held that while identification of an accused can be proved by a testimony of a single identifying witness. The Trial Judge further held that: -

"... the facts that need to be taken into account to lead to proper and positive identification to rule out the possibility of mistaken identity are; familiarity with the accused, distance from which the witness is observing the accused, the length of time or duration the witness took observing the accused and the nature of light available."

Further, PW5 (victim), the victim testified on page 18 of the Record of Appeal that:

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"... I know the accused. He defiled me... We fetched water, I came back alone. My sister remained behind me fetching water. As I was going, I had two jerry cans of water on the bicycle and the accused came and attacked me. He pushed me in the bush and later undressed me. He defiled me and went away with the bicycle...... I had met the accused with my sister before he defiled me. We met while we were going to fetch water that same day. He defiled me at around 4:00pm. The incident lasted for about one hour... I described the person who defiled me to my sister."

During cross examination on **pages 19-20** of the Record of Appeal, the victim testified that: -

"This was the very first time to see the accused. This is the same person. I observed him when he was defiling me.................................... his big eyes which are not seeing well......"

Further, the victim's evidence is corroborated by the circumstantial evidence of the accused going into hiding and attempting to run away. In the case of **Godi** Hussein Akbar Versus Uganda SCCA N003 of 2013, the Supreme Court held that: -

" There are many decided cases which set out the relevant principles which courts apply in deciding cases based on circumstantial evidence. In the case of Simmon Musoke Vs. R (1958) EA 715 at page 718, the Court of Appeal for East Africa held that in a case depending exclusively upon circumstantial evidence, the Court must, before deciding upon conviction, find that the Gloset exculpatory facts are incompatible with the innocence of the accused, and

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incapable of explanation upon any other reasonable hypothesis than that of guilt."

## **Defence of Alibi**

Counsel for the Appellant pleaded the defence alibi when he testified that he was on his business when he saw people arresting him. It follows therefore that the prosecution had the burden to disprove the alibi. This can only be done by prosecution adducing cogent evidence which puts the accused to the scene of crime- see Lt Jonas Ainomugisha vs. Uganda SCCR Appeal No. 19 of 2015 and Jamada Nzabaikukize V Uganda, Supreme Court Criminal Appeal No.01 of 2015.

In the instant matter, upon re-evaluation of both prosecution evidence and the Appellants evidence of alibi, we find that the Trial Judge cannot be faulted for finding that the Appellant was properly identified and put at the scene of crime.

The victim spent sufficient time with the Appellant during the assault to accurately identify him. The victim's description of the Appellant was detailed and consistent. The Appellant's attempt to flee the scene supports the victim's identification.

In the circumstances, we find no merit in this ground and it therefore fails.

Ground 2: The trial Judge erred in law and fact when he imposed on the Appellant a sentence of 36 years which is manifestly harsh and excessive thereby occasioning a miscarriage of justice.

**Submissions of the Appellant**

Counsel for the Appellant argues that the 36-year sentence is excessive and requests the court to reduce it. They cite legal precedents supporting the appellate

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court's authority to interfere with sentences that are manifestly excessive or based on wrong principles. Counsel emphasized the principle of consistency in sentencing and argues that their sentence should be within the typical range for aggravated defilement cases, which is generally 11-15 years. They highlight their mitigating factors, such as being a first offender, young, and having a family, and argue that these factors should warrant a more lenient sentence.

## **Submissions of the Respondent**

Counsel for the Respondent argued that the sentence of 36 years' imprisonment is neither harsh nor excessive and should be upheld. They claim the Trial Judge carefully considered all mitigating and aggravating factors and arrived at a fair sentence within the legal range for aggravated defilement.

Counsel for the Respondent argued that the trial Judge observed all relevant principles and that the sentence is consistent with similar cases. She pointed to the aggravating factors, such as the age difference between the victim and the Appellant, the use of force, and the theft of the victim's bicycle. The Respondent argued that these factors outweigh the mitigating factors and justify the severe sentence imposed.

## **Findings and Decision of Court**

In Arinaitwe Julius vs. Uganda Court of Appeal Criminal Appeal Nos. 0389 & 717 of 2015, this court in accordance with the principle of uniformity and consistency, considered the term of 15 years as appropriate for the Appellant who was a porter in the neighborhood of his victim of 8 years who had been convicted do of aggravated rape to the detriment and sentenged him to 16 years.

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In Ninsiima vs. Uganda, Court of Appeal Criminal Appeal No. 0180 of 2010, this Court set aside a sentence of 30 years' imprisonment imposed on the Appellant by the trial court for Aggravated Defilement and substituted in its place a sentence of 15 years' imprisonment.

In Anguyo Siliva vs. Uganda, Court of Appeal Criminal Appeal No. 38 of 2014, this Court quoted with approval the case of Tiboruhanga Emmanuel vs. Uganda, Court of Appeal Criminal Appeal No. 0655 of 2014 where it was held that in the absence of any other aggravating factors like HIV, the sentencing range for aggravated defilement is 11-15 years' imprisonment.

In the recent case of Kwezira Jonan v Uganda Criminal Appeal No. 195 of 2014, delivered on 3<sup>rd</sup> September 2024, a sentence of 21 years for Aggravated defilement was reduced to 18 years from the date of conviction.

In the recent case of Rurema Deogratius v Uganda Criminal Appeal 185 of 2011) [2024] UGCA 254, the Court upheld the sentence of 22 years for aggravated defilement whereby the Appellant defiled a 10-year-old girl.

In another 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 the instant case, the Appellant was a first offender, aged 28 years, a family man with a wife and 2 children in Kenya, and a total orphan. He is a relatively young man who can be easily rehabilitated which cannot be done with a very long custodial sentence. The victim is 12 years old, and which calls for a deterrent $\beta$ sentence.

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With regard to consistency and parity in sentencing, we find that the sentence of 36 year's imprisonment is harsh and excessive and therefore this court can lawfully interfere with it and set it aside.

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."

Given the range of sentences given in the above quoted cases, a sentence of 20 years' imprisonment would be appropriate in the circumstances. From this must be deducted the period of 4 years the Appellant spent on remand. Therefore, a sentence of 16 years' imprisonment would meet the ends of effective from 22<sup>nd</sup> September 2016 the date of conviction.

## **Final Decision**

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

- The Appeal is granted. - 2. The sentence of the High Court is set aside and substituted with a term of 20 years' imprisonment. - 3. The Appellant shall serve a term of 16 years' imprisonment commencing from 22<sup>nd</sup> September 2016, the date of conviction. $\mathcal{L}^{\mathcal{N}}$

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16 $\frac{1}{6}$ this day of ................................... Dated at.

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Hon. Mr. Justice Geoffrey Kiryabwire JA

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Hon. Mr. Justice Muzamiru Mutangula Kibeedi, JA

$\alpha$ Hon. Lady Justice Margaret Tibulya JA