Uganda v Kato alias Anderea (Criminal Session Case 23 of 2022) [2025] UGHC 116 (25 February 2025)

# THE REPUBLIC OF UGANDA IN THE HIGH COURT OF UGANDA HOLDEN AT HOIMA H. C. CRIMINAL SESSION CASE NO.0023 OF 2022

[Arising from Kakumiro Criminal Case No.54/2016; KK CRB 1308/2015]

### UGANDA============================PROSECUTION VERSUS

KATO ANDREW alias ANDEREA================ACCUSED

BEFORE: HON. JUSTICE BYARUHANGA JESSE RUGYEMA

## **JUDGMENT**

- $[1]$ The accused, Kato Andrew was indicted with the offence of Aggravated Defilement C/s 129 (3) & $4(a)$ PCA. It is alleged that in the month of August, 2015 at Bujumbura East Cell in the Hoima District, the accused performed a sexual act on **Asiimwe Flavia**, a girl aged 6 years. The accused pleaded not guilty to the offence. - The prosecution case is that it was a one afternoon in 2015, when the $[2]$ victim, **Asiimwe Flavia** (PW1), then aged 6 years in Primary 1 at Mother Claudia Primary School, returned from school and was with her sister Agnes and Cousins; Phillip, Aloysius, Jude, Ritah and Emilly. Then the accused came riding a "mate" motorcycle and offered her a ride to his place where he had sexual intercourse with her. - After the accused had played sex with her, the victim went back home. $[3]$ At home, when asked where the accused took her and what happened, the victim revealed to her cousin Ritah that the accused played sex with her. The other cousin **Emilly** required her to narrate what happened in writing on a piece of paper which she did. She herself kept the piece of paper in her play tool box where it was later found by her father, **Mutabazi Edward** (PW2) during his routine cleaning of the house. The contents of the paper were to the effect that the victim was having or being engaged in sexual intercourse encounters. - The victim's father got interested in understanding the meaning of the $[4]$ contents of this piece of paper. He brought this piece of paper to the attention of his wife and both of them confronted the victim for an

Page $| 1$

been held that other ways of proving age of a child can be equally conclusive such as the court's own observation and common sense assessment of the age of the child; Uganda vs Kagoro Godfrey H. C. Crim. Session Case No. 141 of 2002.

- In the instant case, the victim herself testified as **PW1** on $4/12/2024$ $[9]$ and put her age at 16 and indeed, by appearance she appeared a girl, under the age of 18 years. Upon suspicion that she had been defiled, when she was taken for medical examination, the medical practitioner who examined her found her to had been a pupil of P.1 and aged 6 years as per her birth certificate, see **P. Exh.3** dated $8/9/2015$ . The defence itself did not contest the age of the victim as 6 years at the time the victim was allegedly defiled. - [10] In the premises, I find the $1^{st}$ ingredient of the offence duly proved by the prosecution to the required standard.

(b) That a sexual act was performed on the victim.

- [11] Under S. 129 (7) (a) & (b) PCA, a sexual act refers to penetration of the vagina, however slight by the sexual organ of another or unlawful use of any object or organ on another person's sexual **organ.** Proof of penetration is normally established by the victim's evidence and any other cogent evidence, see **Remigious Kiwanuka vs** Uganda S. C. Crim. Appeal No. 41 of 1995. - [12] In the instant case, the victim (PW1) testified that on the fateful day, she had returned from school when the suspect came and offered her a ride to his place where she was told to remove her knickers and had sexual intercourse with the suspect. - [13] When she returned home, under the guidance of her cousin a one **Emilly,** she reduced the incident of sexual encounters on a piece of paper (P. Exh.2). According to **P. Exh.2** it was evident that the victim had had sexual encounters. Indeed, when the victim was taken for medical examination, the first medical practitioner, a Clinical officer who examined her, found that her hymen was raptured but had healed (D. Exh.1) while the $2^{nd}$ medical practitioner, a Medical senior

Page $| 3$

#### Whether it is the accused person who performed a sexual act $(c)$ upon the victim.

- [20] This is the most important ingredient of the offence as it was hotly contested by the accused. - [21] The victim (PW1) in her chit found in her play tool box did not name the accused as the perpetrator of the offence. She merely described the accused to her parents as a man who usually used to come to her mother's food stall at home riding a "Mate" motorcycle to purchase items. According to the father of the victim (PW2), the description matched the accused who was the usual customer at her mother's food stall at home and PW2 himself knew him as their customer. - [22] Secondly, the victim led police to the house where she was defiled from though she failed to locate the room where she was defiled from. Her failure to locate the room she was defiled from is not fatal to the prosecution case considering the fact that she was at the time aged 6 years and the house had many rooms. It is the same house the accused was staying in and as the accused himself admitted, it is this house in Bujumbura where he was arrested from. - [23] The evidence of the victim (PW1), is corroborated by the fact that the house she was defiled from was being occupied by the accused thus. placed the accused at the scene of the crime. - [24] The accused himself testified that on the day he was arrested i.e. on $15/2/2015$ , he had come to Bujumbura to purchase medicine for his elderly mother who was suffering from pressure and to pick a bag of cement for repairs at home. That his motorcycle a super cub so developed mechanical problems and therefore had to stay in their house at Bujumbura for a night. That it was at around midnight that he was arrested on allegations of defiling the victim. **Proscovia** Basemera (DW2) described the accused's motorcycle as a cub in form of "Mate" green in colour. DW2's evidence regarding the description of the accused's motorcycle matched the description the victim gave to her parents when they discovered from her play tool box a chit (P. Exh.2) that was about her sexual encounters with a certain boy or man.

Page $|5$

motorcycle the accused used to ride as being in the form of "Mate" type thus matching the description the accused gave to her parents.

[30] As a result, in disagreement with the gentleman and lady assessors, I find that the prosecution has proved its case beyond reasonable doubt that it is the accused who defiled the victim Asiimwe Flavia. I find the accused guilty of the offence he is charged of and I do convict him accordingly.

Dated at Hoima this 25<sup>th</sup> day of February, 2025.

. . . . . . . . . . . . . . . . . . . . Byaruhanga Jesse Rugyema Judge

### $26/2/2025$ :

Accused present.

Ms. Namusobya for state.

Mr. Mutaryebwa holding brief for Counsel Omara for defence.

Ms. Kenyange: clerk.

## Court:

Judgment delivered in open court in the presence of the above. State:

The accused is a first offender. This offence is rampant in this area and in this country. The victim was from the neighbourhood of the accused. She was at a very tender age of 6 years. In the premises, since the offence carries a maximum sentence of death, I pray for 30 years' imprisonment. Mr. Mutarvebwa:

The accused is a first offender with 4 children. We pray for a lenient sentence so that he is able after serving the sentence to go back to society and look after the family.

## **SENTENCE:**

The accused is a $1^{st}$ offender but who defiled a child who was at the time, of a very tender age of 6 years. The offence is rampant in this area and in this country at large. The accused was a neighbour to the victim as he used to purchase items from the stall of the victim's mother at home. The victim had trust in him. She did not expect him to defile her but in breach of that trust, betrayed her and defiled her.

Considering the totality of the above, the age of the accused person is 52 years, thus the same age of the victim's father and taking into account the period he had spent on remand before release on bail and during this trial when bail was cancelled - 6 months, I do sentence the convict to 12 years' term of imprisonment. Upon deduction of 6 months, the convict shall serve 11 years and 6 months.

$R/A$ explained.

Sgd: Byaruhanga Jesse Rugyema

26/2/2025

Judge