Uganda v Buyondo (HCT-17-CR-SC-0028-2024) [2024] UGHC 1250 (11 July 2024)

**THE REPUBLIC OF UGANDA**

**IN THE HIGH COURT OF UGANDA AT NAKASEKE**

**HCT-17-CR-SC- 0028-2024**

**UGANDA :::::::::::::::::::::::::::::::::::::::::::::::::::::::::::: PROSECUTION**

**VERSUS**

**BUYONDO CHRISTOPHER ::::::::::::::::::::::::::::::::::::: ACCUSED**

**BEFORE HON. LADY JUSTICE HENRIETTA WOLAYO**

**JUDGMENT**

Introduction

1. The accused person is indicted with aggravated defilement. It is alleged that on 26.10.2021 at Busango village in Nakaseke district, the accused person performed a sexual act on Benita Nakyesero, aged eight years. On 25.5.2024, the accused pleaded not guilty to the indictment. Tumukunde Evans and Serunjoji Mohammed were appointed assessors who were sworn in at the commencement of the hearing on 6.6.2024. Prosecution was represented by Bashabe Peace, Chief State Attorney while the accused person was represented by Damba Emmanuel, counsel on state brief. 2. The state had a duty to prove beyond reasonable doubt the following ingredients; 3. Victim below 14 years of age 4. Performance of Sexual Act 5. Participation by the accused person

Proof of age of the victim

1. PF 3A was admitted by agreement of the prosecution and defence. It disclosed that the victim N. B was examined on 27.10.2021 by Dr. Bernard B Okongi who found that she was aged between 8 to 9 years based on dental formulation.

Performance of a sexual act

1. Medical examination of the victim captured on PF3A shows that her labia was reddened and inflamed and a pale yellow discharge from her genitals which inflammation and infection were as result of penile bruising and penetration. It is therefore evident that the victim was was defiled.

Participation of the accused person

1. The state relied upon three witnesses to prove participation. According to PW1 Bamwenda Francis aged 60 years resident of Buyango, Kito , Nakaseke district, the accused person is a village mate whom he has known for about one year and he described him as a pit latrine digger. 2. On 26.10.2021, he went to the garden leaving his daughter the victim at home with her grandmother together with his other children Eric aged six years and Nabakoza Ruth aged three years and on his return at about 1 p.m, he found when the victim was not walking properly. When he asked the victim what had happened, her response was she fell down on her way to the borehole. He called his wife Nakanwaji Jesca PW2 who arrived in the evening the same day at about 7.30 p.m and upon examining the victim, found that she had been defiled. The victim told the mother it is the accused Buyondo who had defiled her and Nakanwaji Jesca PW2 made a report to the police and the accused was arrested. 3. Worthy of note is that according to Nakwanagi PW2, she returned from Kampala on 27.10.2021 and not 26.10.2021 as testified by Bamwenda PW1 her husband. When she returned on 27.10.2021, she had inquired from Birabwa her neighour( now deceased) about what had happened to the girl and Birabwa had said the girl fell while taking keys to her father. Birabwa is the woman Bamwenda left the children with as he went to the garden although the victim’s testimony is that their father left them at home. Nakanwagi further testified that her daughter still suffers from a watery discharge. 4. The victim, PW3, testified on oath after I found she was possessed of sufficient intelligence and understood the importance of taking the oath. She testified how she was at home on 26.10.2021 when the accused stood on the road by her home and beckoned her with his hand. On responding, the accused held her by the hand, took her behind their house and defiled her. In cross-examination, her testimony was that she knew the accused who dug the pit latrine of their neighbour Jamada. She had heard people calling him by name when he was digging the latrine. Furthermore, that at the time, her siblings had gone to the borehole so she was alone at home when the attack happened. 5. The victim spoke clearly and it was evident, she knew what she was saying. She reaffirmed the statement she had made to her mother that she had feared to disclose the sexual act to the mother because the accused had threatened to cut her off her head if she revealed to anyone and that he would give her bread if she did not disclose the encounter. 6. The fact that her mother admitted to slapping her twice before the victim disclosed the incident does not detract from her truthfulness. She had been brainwashed by the accused with threats and a reward which explained why she did not disclose to her father or Birabwa the grandmother before her mother Nakanwagi arrived. 7. In defense, the accused made a sworn statement in which he testified that on the date in question, he had gone to work in the garden of Kawoya. He broke off for lunch at 1 p.m and returned to his work. He also suggested that Nakanwagi, mother of the victim had hired him at one point and failed to pay for work done. I find the defense case a pack of lies and moreover, it puts him up and about at around 1 p.m when the victim was defiled. Her father returned home at 1 p.m so the attack took place before that time but during the day. Although Nakanwagi admitted to hiring the accused to heap for her potato mounds before the incident, she asserted that she paid him which testimony I accept. 8. I am mindful of the minor inconsistencies in the prosecution case. For instance, that Nakanwagi returned from Kampala on 27.10.2021 yet her husband’s testimony is that she returned on 26.10.2021. The other inconsistency is that Bamwenda described Birabwa as his mother while Nakanwaji referred to her as a neighbour. Furthermore, while the victim’s testimony is that on 26.10.2021, she was at home with her siblings, Bwamwenda’s testimony is that he had locked the house and left the children with Birabwa, his mother who later examined the victim that day and found no proof of defilement.

I find that these inconsistencies do not detract from the credible circumstantial and direct evidence adduced by the prosecution.

1. Bearing in mind that the medical evidence that discloses performance of a sexual act; the fact that the father of the victim Bwamwenda left his daughter in the morning when she was fine only to return and find her limping; the positive identification of the accuse by the victim as a pit latrine digger, just as her father described him; the fact that the victim revealed to her mother Nakanwagi that it was Buyondo the accused who defiled her; are all relevant facts that give rise to the inference that the accused person defiled the victim on 26.10.2021. 2. I agree with the two assessors that the state has proved beyond reasonable doubt the offence indicted and the accused is convicted of aggravated defilement as indicted.

**DATED THIS 11TH DAY OF JULY 2024**

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**LADY JUSTICE HENRIETTA WOLAYO**

**Legal representation**

Kirya Gonza Patricia, state attorney for the prosecution

Sekayiri Andrew for the accused on state brief