Uganda v Kigozi (HCT-17-CR-SC-0294-2024) [2024] UGHC 1254 (28 August 2024)

**THE REPUBLIC OF UGANDA**

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

**HCT-17-CR-SC- 0294-2024**

**(Arising from NGM-AA-035-2023)**

**NGM/CRB/049/2023**

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

**VERSUS**

**PASTOR KIGOZI MARTIN…………………………….. ACCUSED**

**BEFORE LADY JUSTICE HENRIETTA WOLAYO**

**JUDGMENT**

Introduction

1. The accused person Kigozi is indicted with aggravated defilement c/s 129 (3) (4) (a) of the Penal Code Act as amended. It is alleged that on 27.01.2023, at Njagalabwami village, Kasangombe sub county in Nakaseke district, he performed a sexual act on Kayitesi Silvia (K. S), a girl aged 4 (four) and a half years. 2. On 5.6.2024, the accused person appeared before me for plea taking and when the indictment was read to him, he pleaded not guilty. Thereafter, Tumukunde Evas and Serunjogi Mohammed were appointed assessors to whom the accused had no objection to their appointment. 3. Upon the assessors taking the assessors’ oath, the trial of the accused person commenced on 11.7.2024. Prosecution was represented by Kirabo Rachel, State Attorney while the accused was represented by Irene Akol on state brief.

Burden of proof

1. The prosecution had a duty to prove beyond reasonable doubt the following ingredients of aggravated defilement: 2. The victim was below fourteen (14) years as prescribed by section 129(4)(a) of the Penal Code Amendment Act 2007. 3. Performance of a sexual act. 4. Participation by the accused person.

Age of the victim

1. Medical examination of the victim captured on PF3A and admitted by consent of both counsel and marked Pexh.1 shows that the victim is aged 4-5 years based on the physical stature. K. S also appeared before me to give evidence and indeed the physical stature shows that she is aged between 4-5 years. The prosecution therefore proved beyond reasonable doubt that the victim was below 14 years at the time of the alleged incident.

Performance of a sexual act and participation by the accused

1. To prove this ingredient, prosecution relied on both medical evidence and witness testimony. Dr. Tumutuneire Allan, a medical doctor at Nakaseke Hospital examined the victim and captured the findings on PF3A which shows that there was mild tenderness in the genital area of the victim. He also noted that the hymen was partially perforated which injuries were as result of blunt trauma. These injuries do not necessary point to a conclusion that the victim was defiled. 2. According to Bampire Alphonsine PW1, a resident of Nangalabwami village, Bulyake parish, Kasangombe sub-county, Nakaseke district, there was an old woman, jaja Nanfuka who was her neighbour and lived about 100 meters for whom she decided to fetch for her water. On her return, she found her biological daughter K. S crying and she thought she was hungry. K. M however told her a man had done something to her and she pointed to the direction of the accused saying, “that is the man”. According to Bampire, it was midday to 1pm and the accused was seated between home of the old woman and her kitchen and he was removing maize from maize cobs. 3. It was Bampire’s testimony that nobody knew Kigozi and the girl narrated how he secured her to the sitting room, placed her on his legs and “pierced” her. Upon crying, the accused chased her out. According to Bampire, she quickly examined her and found she had been hurt in her organs but no penetration. She then took her to Nakaseke police and she was examined at Nakaseke hospital. Bampire testified that the act took place in the old woman’s home while she was in the Kitchen and that the old woman said she heard the child crying and thought she was crying as children often do. The accused was arrested from Nakiyikite trading centre and taken to the chairman LC1. 4. The victim, K. S PW2, aged 5 years testified that she had ever seen the accused at Mukadde’s place. According to K. S, he was seated and he called her and did stupid things to her upon which she cried for mama. She then told mama about it and she took her to hospital. According to her, Jaja did not see him much as he did it in her house and jaja was in the Kitchen. 5. In his defence, Kigozi does not deny being at jaja Nanfuka’s home on 27.01.2023. In fact, he testified that he was arrested when he returned to the old woman’s home the third time, three days later. He however denies defiling the victim and also states that he did not even know the child’s name. According to him, he was going to Nayirikate to pray for a sick person and used a short cut which took him to the home of the old woman. He was still proceeding to his destination when she emerged from the Kitchen upon reaching her home at about midday. The two greeted each other as he was there for a short time and he proceeded on his way to the home of the patient and prayed for them after which he returned home. 6. The next day, he returned to the patient via the home of the old woman and there was an old man at her home with whom they were with. The old man asked him who he was to which he responded he was son of Eneriko Sebagala. The old man then asked him if he could get him a casual labourer and the accused promised to do so. He then left to see the patient after which he returned home. 7. The events leading to his arrest was when he returned to the old woman’s home the third time, three days later and this time, the old woman was with a child. The accused then entered the home and told her he had not yet got a casual labourer and the victim entered the house where he was with the old woman. According to Kigozi, the old woman asked the child to greet him which she did then sat down. After a while, the old woman moved to the kitchen and left him alone with the child and a few moments later, the child went outside the house. In cross examination, he maintained that he was left with the child for not even a minute. 8. Earlier, the old woman had told him a woman had gone to fetch him water. He then took the maize cob he was picking and took the saucepan outside and the old woman sat nearby, some ten meters away as the victim was also outside with the old woman. When the old woman entered the house, the woman who had gone to fetch the water returned, offloaded the water, greeted him and then left with her daughter for her place. 9. Important to note about the accused’s testimony is that the child was ok when they left and was not even crying, contrary to what the victim and her mother told court. The accused then returned the maize cobs to the old woman, undertook to return to see the old man and he testified that he remained in the home for about 12 minutes. He was then arrested from Nyagababwami village on the next day, a Friday. 10. The statement of the accused person shows that he was alone with her for less than a minute before she walked out to follow the old woman and the fact that her mother picked her and they both left when the girl was very fine, only to have the accused arrested the following day, casts doubt on the prosecution case. I respectfully disagree with the opinion of assessors and I find that the prosecution has failed to prove its case beyond reasonable doubt. The accused person is acquitted of the offence indicted and released from custody unless lawfully held in connection with some other offence.

**DATED AT NAKASEKE THIS 28TH DAY OF AUGUST 2024.**

**\_\_\_\_\_\_\_\_\_\_\_\_\_\_**

**LADY JUSTICE HENRIETTA WOLAYO**

**Legal representation**

Kirabo Rachel, State Attorney for the prosecution

Irene Akol for the accused on state brief.