Nyago aka Masimati v Uganda (Criminal Appeal 443 of 2015) [2024] UGCA 195 (26 July 2024)


#### THE REPUBLIC OF UGANDA

### IN THE COURT OF APPEAL OF UGANDA AT JINJA

[CORAM: KIRYABWIRE, KIBEEDI & MUGEIWI, JJAI

# CRIMINAL APPEAL 443 OF 2015

(Arising from the judgnent of the High Court of Uganda at Mukono (Tibulga, J) in Crininal Session No. 34 of 2012)

NYAGO GOD aka MASIMATI APPELLANT

### VERSUS

UGANDA RESPONDENT

## JUDGMENT OF THE COURT

# Introduction

1. The Appellant, Mr. Nyago God alias Masumati, was indicted on aggravated defilement contraql to sections 129 (31 and (a) of the Penal Code Act. The Appellant was arrested, tried, and found guilty of aggravated defilement and sentenced to

twenty-two years (22) imprisonment after deducting the three years' remand period.

- 2. The prosecution alleged that on the 25th of August 2011 at Namaiba village in Mukono district, the Appellant had sexual intercourse with NM, a girl of 6 years. The victim was at home alone. Her grandmother, Bulega Prossy, had gone to visit while her sister, NG, had gone to the well to fetch water. At around 7:00 pm, the victim was returning from the toilet when she met the Appellant, their neighbour. He took the victim to his home and dehled her. The Appellant was arrested, tried, convicted, and sentenced. - 3. Dissatisfied with the Judgment and sentence of the High Court, the Appellant filed this appeal on the following grounds; - <sup>1</sup> The Learned Tial Judge erred in lau and fact in failing to correctlg eualuate the euidence on record on the participation of the Appellant, thus reaching a wrong conclusion. - The Learned Trial Judge erred in latu and fact when she sentenced the Appellant to 22 gears' imprisonment, uthich is harsh and manifestlg excessiue. u - The Learned Tial Judge erred in law and fact when she failed to properlg deduct the Appellant's time spent on remand, occasioning a miscarriage of justice. ut.

4. The Respondent opposed the appeal and contended that the learned trial Judge did not err in evaluating the evidence as a whole and the conclusion and sentence.

#### Submissions

#### Appellant's Submissions.

- 5. At the appeal hearing, Ms. Joan Nakhumitsa appeared for the Appellant on State brief while Ms. Immaculate Angutoko, a Chief State Attorney & Ms. Macrina Nyanzi Gladys, an Assistant Director of Public Prosecutions, appeared for the Respondent. - 6. The Appellant's Counsel faulted the learned trial Judge for relying on the uncorroborated evidence of the victim, Pwl, noting that corroboration, though not a legal requirement, is good practice to rule out uncertainty since the victim was the only eyewitness and did not know the time the offense occurred. Counsel questioned the admission of the victim's medical examination report without the medical doctor's testimony, given that the appeal record was silent on whether the report was an agreed document. The examination was done four days after the offense and does not link the Appellant to the offense. - 7. Counsel further questioned the evidence that the Appellant found the victim returning from the toilet and offered her a

ride but took her to his home, where he defiled her. The victim (Pwl), her grandmother (Pw2), and the Appellant (Dwl) testified that they rented in the same building with other tenants. They also shared the toilet. Given these facts, Counsel submitted that the Appellant couldn't ride the victim to his home.

- 8. Counsel further submitted that there could be <sup>a</sup> presumption that another person could have accosted the victim and defiled her. Counsel pointed to Pwl's evidence that the offense occurred in the evening without being particular about the time. Furthermore, the evidence of Pw2 and Pw3 that the offense happened at about 7:O0 pm is unreliable, given that their testimonies are based on what the victim told them. The evidence eliciting doubt should have led the trial Court to return a verdict of not guilty. In support of this assertion, Counsel cited the case of Woolmington Vs. DPP [1935] AC 426. - 9. Concerning grounds 2 and 3 on sentencing, counsel faulted the learned trial Judge for failure to deduct the period spent on remand as provided in Article 23(8) of the Constitution of the Republic of Uganda. She also faulted the trial Judge for giving a harsh and excessive sentence of 22 years. Counsel cited the cases of Nqshirnolo Paul Kibolo Vs. Uganda [2O2O] UGSC24 and Rwabugande Vs. Uganda, [2014 UGSC 8, where the Supreme Court held that taking into

account the period spent on remand connotes <sup>a</sup> mathematical deduction of that period from the prescribed sentence.

10. Counsel also cited Guideline Number 6 of the Sentencing guidelines on the need for consistency in sentencing and submitted that the sentencing range for defilement, considering past precedents, was between 15 to 17 years. She relied on the cases of Tiburoganda Emmanuel Vs. Uganda CACA llo. O655 of 2074,.l\Itnsima Vs. Uganda, CACA llo. 7AO of 2O1O and Gennqn Benjamin Vs. Uganda CACA No.742 of 2O7O. Counsel prayed that the Appellant the Court find a sentence of <sup>15</sup> years' imprisonment appropriate. We shall consider the applicability of these authorities in the course of reevaluating the evidence.

#### Respondent's submissions.

<sup>1</sup>1. The Respondent submitted that the prosecution adduced evidence that proved the Appellant's participation in the commission of the offense to the required standard. They referred the Court to the victim's evidence on page 8 of the appeal record, where the victim testified that she knew the Appellant and narrated how he defiled her. Counsel argued that there was no possibility of mistaken identity.

- 12. The Respondent further cited Section a0(3) of the Trial on Indictments Act on corroboration of the evidence of a child of tender years and relied on the case of Nto,m.balo. Fred as. Uganda Supreme Court Criminal Appeal No 34 of 207S\_in which the Learned Justices of Appeal held that a conviction can be solely based on the victim's testimony as a single witness, provided the Court finds her truthful and reliable. In Ssewangana Livingstone as. Uganda, Supreme Coura Criminol Appeal No 79 oJ 20O6, the Court held that what matters is the quality, not the quantity of evidence. - 13. Counsel further referred the Court to a separate opinion of Justice Lillian Tibatemwa JSC, agreeing with her colleagues in the Ntambala Fred case (supra), in which she expounded on the law of corroboration in sexual assault cases. She held that: -

". . . the evidence of a victitn of a sexual offense must be treatcd and eualuated in the same manner as the euidence of a uictim of ang other offense. As it is in other cases, the test to be applied to sr.tch euidence tnust be cogent. I utould, therefore, Jind it right to proceed under Article 132 (4) oJ the Constitution to depart from this Court's previous decisions cited in this Judgment uthere the cautionary rule uto,s held to be a requiretnent in sexual assault prosecutiotts".

- 14. The Respondent's Counsel contends that the victim's evidence was truthful, and her delay in reporting was explained as the Appellant had told her not to tell anyone. This was corroborated by PW2, who testified that the victim had reported that the Appellant directed her not to report the defilement. As a report made to a third pilW, Counsel argued that this was corroborative evidence. In Bukenya Joseph as. Uganda Court of Appeal Criminal Appeal No 222 of 2OO3. It was held that information supplied by the victim to the two witnesses on the day the victim was found to be sufficient to corroborate her evidence. - 15. Concerning grounds two and three on sentencing, the Respondent submitted that sentencing is the discretion of a Trial Judge, and an appellate Court will only interfere with a sentence imposed by the trial Court if it is evident that it acted on a wrong principle or overlooked some material fact or if the sentence is manifestly harsh and excessive given the circumstances, See Kiaralabge Berttard as Ugdnda Supreme Court Criminal Appeal No 743 of 2OO7 as cited with approval in Blcrsio Ssekawooga as Uganda Crininal AppealNo 7OZ of2OO9. - 16. ln Kgalinpa Edward as. Uganda Supreme Court Criminal Appeal No. 70 of 7995, the Court found that each case presents its facts upon which a Judge exercises

his discretion and an appellate Court will not interfere with the sentence imposed by a trial Court on the ground that it would have imposed a different sentence. The Respondent argued that the Trial Judge considered the mitigating and aggravating factors to arrive at the appropriate punishment of 22 years.

- 17. Counsel argued that the sentence was consistent with other sentences meted out by this Honourable Court and below the maximum sentence of death stipulated under section L29 \$l(al of the Penal Code Act. Counsel illustrated the consistency by citing similar cases. In Ntare Augustine us. Uganda Criminal Appeal llo 53 of 2077, for the aggravated defilement of an 1l-year-old, the sentence of 25 years was found not to exceed the permissible sentencing range. ln Sentgange Yuda Tadeo us. Uganda Criminql Appeal No 80 oJ 2O7O, the Appellant's setrtence of 33 gears' imprisonment was reduced to 27 years for the aggravated dehlement of a nine-year-old. ln Kizza Geoffreg us. Uganda Crininol Appeal lVo 76 of 2O7O, the Appellant's sentence for the aggravated defilement of a 9 year-old was reduced from a 3O-year sentence to 28 years and nine months after the reduction of the period spent on remand. - 18. Counsel for the Respondent further submitted that the learned trial Judge complied with Article 23(8) of the Constitution by deducting the pre-trial remand period from the sentence. The Respondent quoted the Trial Judge's sentencing notes: -

". . . I haue considered the mitigating factors brought to mg attention, including the time spent on remand, and I sentence the qccused to 22 gears' impisonment. The remand period has alreadg been deducted from the impisonment term.'

i9. Counsel for the Respondent submitted that the Appellant was sentenced on 2"d March 2015 before the decision in Rutabugqnde Moses vs. Uganda Supreme Court Criminal Appeal No 25 of 2O75, which required an arithmetic deduction of the period spent on remand. The Respondent argued that the presiding procedure was that in Kizito Senk:.tla us. Ugand.a Criminal Appeal No 24 of 2OO7, where taking into account the time spent on remand did not mean mathematical deduction. The Respondent noted that the tria-l Judge stated that the remand period was deducted and invited the Court to dismiss the appeal.

## Determination

20. We are alive to the duty of this Court, being a first appellate Court, to re-eva-luate the entire evidence on record and come to its conclusion, bearing in mind that it did not see the witness testify. See RuIe 30 (1) of the CourA oJ Appeal Rules, Kifamunte IIenry as. Ugand.a Supreme Court criminal appeal No. 70 of 7997, Pandga as. <sup>R</sup> 7957 EA 336, and Okeno as. Republic [1972] EA 32.

Ground one: Failure to correctly evaluate the evidence concerning the Appellant's participation?

- 2l . The victim, pw1, testified that the Appellant got her coming from the toilet in the evening and invited her to sit on his bicycle. He rode her to his home and in his house, removed her knickers and skirt, and slept on her. She felt pain in her stomach and bled. The Appellant removed the blood-stained bedsheets, and as he washed them from inside the house, the victim opened the door and ran off home. The Appellant directed the victim not to tell anybody. - 22. PWl did not report, but a lady who sensed a foul smell on the victim the following day asked her if she was raped, and pwl answered in the affirmative. Pw1 testihed that the lady examined her and informed the victim's grandmother, who took the victim to hospital. Pw1 stated that the Appellant tied a cloth around her mouth to prevent her from screaming. In cross-examination, Pw1 stated that she knew the Appellant ". he uould sell charcoo,l to grondmother. I used to see him quite often. I found the accttsed neqr the toilet, which we used to sho,re with

## him. There wds rto gntdge between mg grandmother and him."

- 23. Pw2, the victim's grandmother testified that the Appella-nt was a neighbour. Pw2 would buy charcoal from the Appellant, while the Appellant would buy clothes from Pw2. Pw2 confirmed that a customer who had gone to have a hairdo noticed a foul smell from the victim. Pw2 examined the victim and found widened private parts. Pw2 stated that her friend told her that the victim was urinating blood. Pw1 at first feared to reveal who had defiled her but later agreed that it was the Appellant, God. Pw2 reported to Local Council authorities and police. - 24. Pw2 further testihed that the victim was examined at Kawolo Hospital, and rape was confirmed. The victim was given medicine to prevent HIV infection. Pw2 testified that she had no grudge against the Appellant and considered him a good neighbour. - 25. Pw3, a police officer who investigated the case, tendered in court the victim's torn knicker and the medical examination reports. The defence did not dispute these. Pw3 re-stated what Pwl told her. She also interviewed the Appellant, who denied the allegations.

- 26. The Appellant testified that they were neighbours with the victim but denied raping her, stating that if he had done so, the other neighbours would have known. Dwl stated that he was not the only male tenant but again admitted that some other men do not live there. - 27. In her Judgment, the trial Judge noted that the ingredients of the victim's age and the fact of defilement were not disputed. Even on appeal, these facts are not in dispute. - 28. Concerning the disputed fact of the Appellant's participation, the trial Judge found in her Judgment on pages 18 and 19 of the record that the victim and the Appellant were known to each other, and there was no possibility of mistaken identity. Further, there was evidence of a good relationship between the accused and the victim's guardian, so there was no grudge between the accused and the victim. She did not believe the accused's denial. - 29. We find no fault with the conclusion of the trial Judge. Upon re-evaluation, we reach the sarne conclusion. Corroboration of the evidence of a victim of a sexual offense is no longer a legal requirement, as held in the Ntambala and Ssewanyatra cases cited above. That notwithstanding, the evidence of Pw2 and Pw3 sufficiently corroborated that of Pwl concerning the Appellant's participation in the

sexua-l assault. The Bukenya case cited above illustrates that information the victim gives to a third party after the offense is corroborative evidence. The 1"t ground of appeal fails.

Grounds two & three: Failure to deduct the remand period & passing a harsh and manifestly excessive sentence.

30. On this ground, the Appellant challenges t}l-e 22-year sentence as harsh and excessive and faults the trial Judge for not deducting the pre-trial remand period. The sentencing notes on page 20 of the appeal record reflect as follows: -

## "S. EMTE]YCE

The accused is a mature man who abused the trust put in him as a neighbour. She readilg accepted to sit on his bicgcle because he was the uictim's neighbour. The uictim u.tas onlg six gears old, and her innocence u)as shattered. I haue considered the mitigating factors brought to mA attention, including the time spent on remand, and I sentence the acatsed to 22 gears' impisonment. The remand period has alreadg been deducted from the impisonment term".

31. From the excerpt above, it is clear that the trial Judge considered and expressly stated that the period spent on remand was deducted. The case of Rwabugande (supra) cited by Counsel for the Appellant is not applicable in this

case because, by the time the Appellant was sentenced, the requirement for mathematica,l deduction brought by the Rwabugande regime was not in force since it had not yet been determined.

- 32. Regarding the sentence period, Counsel for the Appellant submitted that22 years was harsh and excessive. The Kyalimpa case (supra) emphasizes the discretionar5r powers of a sentencing Judge and the need for appellate courts not to interfere with the discretion unless the sentence is illegal or the trial Judge omitted to follow some principles, thereby arriving at a manifestly hash or low sentence. The Sentencing Guidelines provide for the sentencing range for the offense of aggravated defilement as 30 years and up to death. - 33. We have reviewed the cases cited by both pa-rties above and considered the sentencing guidelines and the mitigating and aggravating factors considered by the trial Judge. The trial Judge found that the Appellant shattered the innocence of a six-year-old child who trusted him as <sup>a</sup> neighbour. We find no fault in the sentence prescribed. It was neither illegal nor based on wrong principles, nor was it manifestly harsh nor excessive. We see no reason to interfere with it. - 34. The appeal is accordingly dismissed.

We So Find.

W Dated and delivered at Kampal a this?9.t.. day of 2024.

Geoffrey Kiryabwire Justice ofAppeal

Muzamiru M. Kibeedi Justice ofAppeal

( \*Monica K. Mugenyi (

Justice ofAppeal

\* This judgment uas signed before this Judge ceased to hold that office.