Uganda v Kamoga (HCT-17-CR-SC-0116-2024) [2024] UGHC 1252 (18 July 2024)

**THE REPUBLIC OF UGANDA**

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

**HCT-17-CR-SC- 0116-2024**

**UGANDA……………………………………………PROSECUTION**

**VERSUS**

**KAMOGA ABASI ………………………………… ACCUSED**

**BEFORE HON. LADY JUSTICE HENRIETTA WOLAYO**

**JUDGMENT**

Introduction

1. The accused person is indicted with aggravated defilement. It is alleged that on 20.10.2021, at Kinyogoga sub-county, Nakaseke district, the accused person performed a sexual act on Nakandi Sophie, aged 13 years. On 25.5.2024, the accused pleaded not guilty. Tumukunde Evas and Serunjoji Mohamed were appointed assessors and at the commencement of the hearing on 6.6.2024, they took the assessors’ oath. Prosecution was represented by Kukundakwe Arthurton, Senior Resident 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. The victim was below 14 years. 4. A sexual act 5. Participation by the accused person

Proof of age of the victim

1. Both prosecution and defence were in agreement on the performance of a sexual act recorded in PF3A. PF3A discloses that the N. S was examined on 10.11.2021 by Medical officer Businge Micheal and she was found to be 13 years old basing on dental formulation at the time of the alleged offence.

Proof of a sexual act.

1. The medical examiner found she was bleeding and had a shattered hymen as a result of penetration. In light of above analysis, I find that prosecution proved that a sexual act was performed on the victim.

Participation by the accused person

1. It was testimony of PW1 Namugenyi Zam aged 41 years, resident of Kinyogoga LC1, Nakaseke district that on 10.10. 2021 at approximately 7.30 p.m, she was at her workplace some 200 meters from her residence roasting maize when a customer wanted sweet potatoes. She sent him to her daughter who was at home to attend to him only for the customer to return because the girl was not at home. When Namugenyi returned home at approximately 9 p.m, she found when the victim was just arriving. On threatening to beat her, the victim revealed she had been with Abbas, the accused person, and later, she disclosed that Abbas had defiled her. 2. Namugenyi was supported by her husband PW2 Imam Ssekandi aged 42 years resident of Kinyogoga . On 10.10.2021, he returned home between 9 and 10 p.m and found his wife Namugenyi beating the victim for not disclosing where she had been. 3. After he caned her, the victim revealed she had been with Abbas so she led him to Abbas who admitted having seen the victim. Ssekandi then took Abbas to the police station and next day, he took her to Kinyogoga health centre III for medical examination. It was his testimony that Abbas lived some 230 meters away from his home. 4. It was the testimony of the victim PW3 that before the incident, she had met the accused along a path and had known him for one month. On 10.10.2021, she went to his home and he told her he loves her. According to the victim, the accused then defiled her from the SDA church which is 150 feet from their home and near the home of the accused. She admitted having told her mother about the defilement. 5. From the foregoing analysis, it is evident that the victim positively identified the accused as the person who defiled her at the SDA church which is near the home of the accused regardless that there were no lights in the church. She had known him for one month and he lived just 230 meters away from her home. She disclosed to both her parents Namugenyi and Ssekandi that the accused person had defiled her. The fact that on 11.10.2021 when she was medically examined, she was found with a raptured hymen and was bleeding, corroborates her own testimony and that of her parents that the accused defiled her on 10.10.2021. 6. In his defense, the accused person made a sworn statement in which he admitted to knowing the victim and he met her on his way back from his parent’s home and that he chatted with victim and then proceeded to his home to rest but denied defiling the victim. 7. I reject the denial by the accused person as the prosecution evidence identifies him as the person who defiled the victim on 10.10.2021 in the evening since this is the time the victim disappeared from home and returned at 9 p.m. In his statement, the accused admitted to being out after 8.20 p.m as he went to check on his parents. 8. I agree with the two assessors that the state has proved its case beyond reasonable doubt and I convict him of the offence of aggravated defilement c/s 129(3) (4) (a) of the Penal Code Act Cap. 120.

**DATED AT NAKASEKE THIS 18TH DAY OF JULY 2024.**

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**LADY JUSTICE HENRIETTA WOLAYO**

Legal representation

Kukundakwe Arthurton , Senior Resident State Attorney, Nakaseke

Emmanuel Damba for the accused on private brief.

18.7.2024

Accused present

Kirabo Rachel holds brief for Kukundakwe for the state

Court clerk: Florence

Court: Judgment delivered.

Kirabo: The convict inflicted injuries on the victim

She was of tender age.

Sekayiri: He is a first offender. Pray for leniency

Accused: I have younger siblings I take care of. Pray for leniency

**Sentence**

The accused person took advantage of the victim’s naivety and innocence being a child aged 12 years old, and introduced her to sexual activity which is a grave criminal offence.

That the accused is aged 21 years is a mitigating factor but does not override the need to send a clear message to the youth to live responsibly within the law.

Appropriate sentence is twelve years . As he has been on remand for two years and nine months, he is sentenced to nine years and three months imprisonment.

Judge