Uganda v Byamanya Naboth (HCT-17-CR-SC-0315-2024) [2024] UGHC 1251 (20 August 2024)

**THE REPUBLIC OF UGANDA**

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

**CRIMINAL SESSION CASE NO. HCT-17-CR-SC-0315-2024**

**ARISING FROM LUWERO CHIEF MAGISTRATE’S COURT CASE NO. AA112/2022**

**SMTO CRB: 130/2022**

**UGANDA V BYAMANYA NABOTH**

**JUDGMENT**

Introduction

1. The accused person Bamanya Naboth is indicted with aggravated defilement c/s 129(3) (4) (a) of the Penal Code Act Cap. 120. It is alleged that on 4.6.2022 at Kakonda village, Semuto sub-county, Nakaseke district, the accused person performed a sexual act on Nantume Harriet (N. H), a girl aged 13 years. On 5.6.2024, the indictment was read to the admitted understanding of the accused to which he pleaded not guilty. Kyalimpa Evalyne and Mwesigye Samuel were appointed assessors who took the assessors’ oath on 10.7.2024 when the hearing commenced. Prosecution was led by Peace Bashabe Chief State Attorney while the accused was represented by Emmanuel Damba on state brief. 2. The state had a duty to prove beyond reasonable doubt the following ingredients of aggravated defilement: 1. The victim was below 14 years 2. A sexual act 3. Participation by the accused.

Proof of age

1. That the victim was below 14 years was an agreed fact proved through PF3A which reveals that on 11.6.2022, the victim was examined at Semuto Health Centre IV by Etin Quino, a medical examiner and found to be of the apparent age of 13 years. She testified as PW1 and gave her age as 16 years. This means she was approximately 14 years old in June 2022 having been born in 2008, therefore, she did not have legal capacity to consent.

Proof of a sexual act

1. The same PF3A reveals that on 11.6. 2022 when she was medically examined, she had a raptured hymen with septic vaginal lacerations that were traumatic. This means that this fact is not disputed.

Whether the accused participated in the sexual act

1. From my evaluation of the evidence, it is not disputed that N. H the victim lives with her sister Narwadda Annet and the husband Mulinde Kazibwe in Kakonda village. In 2022, she was in primary five but dropped out of school after the incident. Prior to the incident, she knew the accused as a village mate and was called askari. She had known him for about seven months. 2. On 4.6.2022, she was going to the garden to pick cassava at about 5 p.m , as she passed the charcoal place, the accused told her to follow him which she did. He led her to the banana plantation from where he defiled her. The victim described the sexual act with the help of a male and female doll. It was her testimony that it was the first time he was defiling her and that he repeated the act one day later. Her brother in law Mulinde noticed she was limping and when he caned her, she revealed to him that the accused had defiled her. The matter was reported to police and accused person was arrested. 3. In cross-examination, the testimony of the victim was that the charcoal place is approx. 200 meters from their home and that her brother-in-law noticed she was limping three days after the defilement. 4. Her sister Narwadda Annete PW2, aged 28 years, and resident of Kikonyo village confirmed that in 2022, she lived in Kakonda village and N. H the victim is her sister while the accused was neighour and a charcoal burner. She knew him as askari but after the incident, she learnt his name was Naboth Byamanya. On 4.6.2022, she noticed her sister N. H was limping and after observing her, Narwadda and her husband Mulinde asked her and it was when the two threatened to beat her that she revealed she had been defiled by the accused. 5. Although Narawadda’s testimony in examination-in-chief was that she learnt of the incident on 4.6.2022, in cross-examination, her testimony was that she observed the victim for two days and then went to report to police two days after the discovery. 6. It was Narwadda’s testimony that the accused was arrested same day the victim disclosed the incident which was almost four days after 4.6.2024. 7. From the foregoing analysis, the accused has been placed at the scene of crime by the victim who knew him well as askari, and who lived some 200 meters away. Moreover, he defiled her twice on 4.6.202 and a day later. It happened during the day at about 5 p.m so the question of mistaken identity does not arise. The fact that she revealed to her sister Narwadda the incident and the fact that she was limping after 4.6.2022 as observed by Narwadda are all relevant facts. 8. In his defence, the accused made a sworn statement in which he admitted he was a guard at a mast and also a charcoal burner and a casual labourer. According to the accused, he spent the whole day at home on 4.6.2022. He knew the victim but denied defiling her. He admitted he was arrested on 11.6.2022 and he had no grudge with the father of the victim. In summary, the accused put up a general denial and claimed he was at his home all day on 4.6.2022. I reject his denial in light of the credible evidence adduced by the prosecution placing him at the scene of crime. 9. Having evaluated the evidence and found that the accused was placed at the scene of crime by the victim in a banana plantation close to the charcoal place where he operates on 4.6.2022 at about 5 p.m, I agree with the two assessors that the state has proved its case beyond reasonable doubt. He is convicted of aggravated defilement c/s 129 (3) (4) of the Penal Code Act Cap. 120.

**DATED AT NAKASEKE THIS 2OTH DAY OF AUGUST 2024**

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**LADY JUSTICE HENRIETTA WOLAYO**

Legal representation

Bashabe Peace, chief state attorney for the prosecution

Damba Emmanuel for the accused person on state brief.

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20.8.2024

Accused present

Kirabo for the state

Irene Akol for the accused on state brief

Court: Judgment delivered.

State: The victim was of a tender age.

She suffered injuries and trauma.

The offence is rampant.

Irene Akol:

* The convict is a first offender * He is 44 years old and therefore approaching advanced age. * He suffers from High Blood Pressure. * He is married with six children.

Accused:

* I plead for leniency. * My children and are with their mother without me.

Court:

**Sentence**

Accused person is aged 44 years while the victim was only 12 at the time. Evidently, he took advantage of her and owing to the stigma associated with defilement, she is now a school drop-out which means the defilement curtailed her pursuit of formal education. That he is a first offender and has children are mitigating factors.

Bearing in mind that sexual violence against young girls is rampant, the conduct of the accused attracts a stiff penalty.

Appropriate sentence is 15 years. As he has been on remand since 20.6.2022 for two years and two months, he is sentenced to twelve years and ten months imprisonment.

Wolayo J