Ndayishimye v Uganda (Criminal Appeal 222 of 2019) [2025] UGCA 141 (14 May 2025)

# THE REPUBLIC OF UGANDA

# IN THE COURT OF APPEAL OF UGANDA HOLDEN AT MASINDI

(Coram: Dr. F. Zeija, DCJ; C. Gashirabake, and K. K. Katunguka (JJA)

# CRIMINAL APPEAL NO.0222-2019

#### **BETWEEN**

#### NDAYISHIMYE KARYEJA ::::::::::::::::::::: **APPELLANT**

#### **AND**

**UGANDA ::::::::::::: EXAMPLE 2017 ESPONDENT**

(An appeal from a decision of the High Court of Uganda criminal Case No: 83/2014 sitting at Masindi(before Mugenyi, J) delivered on the 7<sup>th</sup> day of July 2019.)

# JUDGMENT OF THE COURT

#### **Introduction**

[1] The appellant was indicted, tried and convicted for Aggravated Defilement contrary to Section 129(3)(4)(a) of the Penal Code Act and sentenced to 30 years imprisonment minus the period spent on remand.

#### **Background**

- [2] The appellant, while at Marembo village, Kasonga Parish, Kyangwali Sub-County in the Hoima District, had unlawful sexual intercourse with MDS, a girl aged 12 years. The victim-MDS, was residing at the home of her elder sister, a wife to the appellant at Marembo village, Kasonga Parish, Kyangwali sub-county in Hoima District. - [3] On the 8<sup>th</sup> day of October 2013, the appellant forced MDS into bed and had sexual intercourse with her four times. The victim's father was informed and reported the matter

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to police and the appellant was arrested. The victim was examined on Police Form 3A and found to be 12 years old, her hymen ruptured, and she had an offensive smell. At the trial, the appellant pleaded not guilty. He was convicted following a full trial and sentenced to 30 years imprisonment. The period spent on remand of 5 years, 08 months and 14 days spent on remand. Being dissatisfied with the decision of the trial Court, the appellant brings this appeal against the decision and sentence.

# Grounds of appeal

- 1. The learned trial Judge erred in law and fact when she found that the Appellant was positively identified, whereas not. - 2. The learned trial Judge erred in law and fact when she imposed a harsh and excessive sentence against the Appellant.

# **Representation**

[4] The Appellant was represented by Ms. Susan Zemei on State brief. The Respondent was represented by Ms. Ainebyona Happiness, Chief State Attorney.

## Submissions of the Appellant's Counsel

- [5] Counsel was alive to the principle of law that an accused person should be convicted on the strength of the case as proved by prosecution but not on weakness of his defence (see: R V. Isreal Epuku s/o Achietu [1934] 1 EACA 166.) - [6] On ground 1, Counsel submitted that: the sole witness in respect of identification of the accused was the victim who testified as PW2. While the accused did not deny being known by the victim, he denied having defiled her. The evidence of PW1, the victim's father, who was called after the alleged defilement, was most likely hearsay as it referred to that of PW2. Counsel submitted that the evidence of PW1 was either made up or hearsay, which ought not to have persuaded the Trial Judge as it cast more doubt.

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- [7] Counsel further stated that the evidence cast a shadow of doubt on the place, time and the person responsible for defiling PW2. PW1 stated on page 16 of the record of proceedings that PW2 was defiled on 12/10/2013. However, in the medical report dated 14<sup>th</sup> October 2013 admitted in evidence as PE2, the examining officer stated at page 3 that no samples were taken for purposes of analysis because the act had taken place on $9<sup>th</sup>$ and $10<sup>th</sup>$ of October 2013. - [8] To counsel, it implied that the incident occurred not at the Appellant's place but somewhere else since PWI stated that PW2 had run away two days before the incident, which, according to him, occurred on 12th October 2013. Meaning that the incident occurred on the 9th or 10th before PW2 had gone to Appellant's home. Besides, the alarm made by PW2, as alleged, was never responded to. He refers to the case of *Miller vs Minister of Pensions (1947) 2. All. ER 372 at 373 in respect of proof beyond a reasonable* doubt. - [9] On ground 2, Counsel opined that court passed a rather manifestly harsh and excessive sentence in light of the fact that the Appellant is a first-time offender, which fact the trial court did not take into consideration. He referred to the **Constitutional (Sentencing** Guidelines for Courts of Judicature) (Practice) Directions 2013, 3<sup>rd</sup> Schedule, which provides for the sentencing range for aggravated defilement to be 30 years up to death and the starting point 35 years. Counsel refers to tons of cases where this Court and the Supreme Court of Uganda have passed lesser sentences in similar offences of aggravated defilement.

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## **Respondent's submissions**

Ground 1

- $[10]$ Counsel for the Respondent submitted that PW2 was staying with the appellant, whom she knew very well as the husband of the elder sister. She could not have mistaken the identity of the appellant, given the nature of the relationship. Counsel cited Basoga Patrick v Uganda, CACA NO. 42 OF 2002, which held the requirement for corroboration in sexual offences of the testimony of female victims with other witness testimonies unconstitutional. What is needed to corroborate the evidence of the victim is the medical evidence, which was conducted and confirmed the ruptured hymen. - [11] In his unsworn evidence, the appellant contended that the case was made up following a grudge in respect to dowry. It's Counsel's submission that in the testimony of PW2 and PW1 there was no grudge between them and the appellant. PW1 did not send PW2 to the appellant's home, but rather PW2 escaped with the aid of the appellant's wife to help her in the garden. Counsel prayed that this court find that the appellant was positively identified and squarely placed at the scene of crime.

## Ground 2

[12] It is submitted that the trial judge considered both mitigating and aggravating factors at page 37 of the record of proceedings and gave reasons for the same. The sentence was within the sentencing range as prescribed by the law. The sentence of 30 years imprisonment minus the remand period of 5years, 8 months and 14days was neither harsh nor excessive but rather lenient and the learned trial Judge properly exercised her discretion having weighed both the mitigating and aggravating factors.

There were no submissions in rejoinder.

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## **Analysis by the Court**

- [13] In resolving the issues raised in this appeal, this court is mindful of its duty as the first appellate court to decide whether the trial court failed in its duty to evaluate the evidence presented before it to reach its own conclusion. [See; KIFAMUNTE HENRY vs. **UGANDA (1997) LLR 72 (SCU)]** - [14] In Baguma Fred v Uganda (Criminal Appeal 7 of 2004) [2005] UGSC 24 (4 November 2005) court stated that "It is trite law that the duty of a first appellate court is to reconsider all material evidence that was before the trial court, and while making allowance for the fact that it has neither seen nor heard the witnesses, to come to its own conclusion on that evidence. Secondly, in so doing it must consider the evidence on any issue in its totality and not any piece in isolation. It is only through such re-evaluation that it can reach its own conclusion, as distinct from merely endorsing the conclusion of the trial court." - [15] Thus, this Court will only interfere with the conclusions of the trial Court if it appears that the court failed to evaluate the evidence as a whole.

#### Findings and decision of Court.

[16] We have addressed ourselves to the submissions of both Appellant and Respondent's Counsel.

#### Ground 1

# The learned trial Judge erred in law and fact when she found that the Appellant was positively identified, whereas not.

[17] The record of proceedings before the trial court show that the prosecution called two witnesses; PW1 the victim's father and PW2 the victim. PW1 testified that he got information about the defilement of his daughter from the accused's neighbour and a social worker. This was confirmed to him by PW2 herself. There is no doubt that he did

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not witness the appellant committing the actual offence. PW2 remains the only witness to the crime.

- Section 133 of the Evidence Act stipulates that, subject to the provisions of any other $[18]$ law in force, no particular number of witnesses shall in any case be required for the proof of any fact. - [19] The Supreme Court in Bogere Moses v Uganda [1998] UGSC 22 (6 July 1998) had this to say on the issue of identification of an accused person.

"This Court has, in very many decided cases, given guidelines on the approach to be taken in dealing with evidence of identification by eyewitnesses in criminal cases. The starting point is that a court ought to satisfy itself from the evidence whether the conditions under which the identification is claimed to have been made were or were not difficult, and to warn itself of the possibility of mistaken identity. The court should then proceed to evaluate the evidence cautiously so that it does not convict or uphold a conviction, unless it is satisfied that mistaken identity is ruled out. In so doing, the court must consider the evidence as a whole, namely the evidence, if any, of factors favouring correct identification together with those rendering it difficult. It is trite law that no piece of evidence should be weighed except about all the rest of the evidence."

[20] Further, in Abdalla Nabulere & Another Vs Uganda Cr. App. No. 9 of I978 (1979); it was emphasized that: -

"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, The reason for the special caution is that there is a possibility that a mistaken witness can be a convincing one, and that even several such witnesses can

Page 6 of 11 all be mistaken. The judge should then examine closely the circumstances in which the identification came to be made particularly the length of time, the distance, the light, and the familiarity of the witness with the accused.

All these factors contribute to the quality of the identification evidence. If the quality is good, the danger of a mistaken identity is reduced, but. The poorer the quality the greater the danger. When the quality 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 before, a court can safely convict even though there is no other evidence to support the identification evidence, provided the court adequately warns itself of the special need for caution."

- A conviction can be sustained solely based on the testimony of the victim as a single $[21]$ witness, provided the court finds her/him to be truthful and reliable. See: Ntambala Fred Vs Uganda SC Criminal Appeal 34 of 2015, - [22] Prof. Lillian Tibatemwa Ekirikubinza further emphasized that the evidence of a victim in a sexual offence must be treated and evaluated in the same manner as the evidence of a victim of any other offence. As it is in other cases, the test to be applied to such evidence must be cogent. - [23] Throughout her testimony, PW2 maintained that it was the appellant who defiled her. The fact that the appellant was familiar to her as her brother-in-law is uncontested. In the instant case, the victim clearly stated in her sworn evidence on pages 19 to 21 of the record, that the appellant is the husband of her elder sister. It's also PW1's sworn testimony that when she was at the appellant's place, he told her to sleep with him and they played sex during which she felt pain. Her sister witnessed the incident, but the appellant did not stop the sexual act.

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MA

- [24] PW1's evidence regarding the sexual act was hearsay, but the fact that he took her for medical examination following the conversation with PW2 after the defilement, and for medical examination report that confirmed the defilement, corroborates the testimony of **PW2.** - Concerning the participation of the appellant in the offence, the trial court had this to $[25]$ say;

"PW2 indeed knew the accused as a brother-in-law who forced her into his bed and had sexual intercourse with her not once, but four times. I agree with the prosecution, there was no possibility of mistaken identity."

- [26] This evidence was further corroborated by the medical evidence PF3A, which revealed that she had offensive-smelling genitals and a ruptured hymen caused by penetrative sexual intercourse. - [27] The Appellant claimed that there was a grudge between him and PW1 over the failure to pay bride price for PW1's daughter, a sister to PW2. He therefore testified that he was maliciously implicated by PW1 to have committed the offence in issue. This allegation was denied by both PW1 and PW2. - [28] We are inclined to concur with the argument of counsel for the Respondent that there was no way medical examination could reveal findings of a ruptured hymen and offensive smell from the genitals if the case against the accused was based on malice. - [29] It is our finding that PW2's testimony places the Appellant at the scene of crime and it was enough to convict the Appellant of the offence. We agree with the trial Court that, given the relationship between the Appellant and the victim, it is not possible that the victim wrongly identified the Appellant.

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- [30] We have considered the discrepancy raised by Counsel for the Appellant regarding the date when the offence was committed. PW1's testimony as to the date when the victim was defiled was 12/10/2013; he reported the incident at police the following day on 13;/10/2013, since he came to know about the matter in the night. Police form 3A shows that the victim was referred for medical examination on 13/10/2013 the same date the matter was filed at police. - [31]. It is our considered view that since the victim stated that she was defiled on four occasions during the period between 9<sup>th</sup> -12<sup>th</sup>, the exact date is inconsequential to the outcome that the victim was in fact defiled by the appellant; what is clear is that during that period the victim was staying with the appellant and his wife.

This ground, therefore, fails.

## Ground 2

## The learned trial Judge erred in law and fact when she imposed a harsh and excessive sentence against the Appellant.

[32] As to whether the sentence was harsh and excessive in the circumstances of the case, the Supreme Court in Aharikundira v Uganda [2018] UGSC 49 (3 December 2018) held thus;

"There is a high threshold to be met for an appellate court to intervene with the sentence handed down by a trial judge on grounds of it being manifestly excessive. Sentencing is not a mechanical process but a matter of judicial discretion; therefore, perfect uniformity is hardly possible. The keyword is "manifestly excessive". An appellate court will only intervene where the sentence imposed exceeds the permissible range or sentence variation."

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Counsel for the Appellant prayed for a reduction of the sentence for the Appellant. The Appellant was sentenced to 30 years minus 5 years, 08 months and 14 days as period spent on remand.

[33] According to the 3<sup>rd</sup> schedule of the **Constitution (Sentencing Guidelines For Courts** Of Judicature) (Practice) Directions, 2013, the aggravated defilement sentence starts from 35 years, with a range of 30 years to death.

We must therefore emphasize that this court will not intervene with the sentencing discretion of the trial court simply because there are sentences in previous cases that are lower than what was imposed. One must specifically show important factor(s) or principle(s) that the trial court did not consider that resulted in the sentence being either illegal or manifestly excessive or so low as to amount to an injustice.

[34] Before sentencing the appellant, the learned trial Judge considered the aggravating and mitigating factors and concluded that;

"The accused was convicted of a very grave offence on a young girl he was supposed to protect. The young girl is suffering emotional trauma with him and even dropped out of school because the children laughed at her. This offence is rampant and must be stopped in this society."

- [35] According to the 3<sup>rd</sup> schedule of the **Constitution (Sentencing Guidelines For Courts Of** Judicature) (Practice) Directions, 2013, for aggravated defilement, the sentence starts from 35 years with a range of 30 years up to death. - [36] We find that the sentence of 30 years imposed on the appellant was not excessive nor harsh. This court shall not interfere with the findings of the trial court.

The appeal is accordingly dismissed.

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We so order

Dated at Masindi this...

$\ldots$ day of $\ldots$ .2025.

> **FLAVIAN ZEIJA (PhD) Deputy Chief Justice**

**CHRISTOPHER GASHIRABAKE**

**Justice of Appeal**

**KETRAH KITARIISIBWA KATUNGUKA**

**Justice of Appeal**