Uganda v Kiiza (HCT-00-CR-SC 371 of 2021) [2021] UGHCCRD 95 (21 September 2021)

## **THE REPUBLIC OF UGANDA IN THE HIGH COURT OF UGANDA HOLDEN AT KAMPALA HCT-00-CR-SC-0371-2021**

**UGANDA ……………… PROSECUTOR**

**VERSUS**

**KIIZA REGAN ……................ JUVENILE OFFENDER**

## **BEFORE: THE MR. JUSTICE MICHAEL ELUBU**

## **RULING**

This is a trial involving a juvenile offender, **KIIZA REGAN,** who stands indicted on two counts of Aggravated Defilement c/ss 129 (3), 129 (4) (a) & (c) of **the Penal Code Act**. It is alleged in the 1st count that in the year 2019 to April 2021, in Kabuuma Village, Kiiza Regan performed a sexual act on Namatovu Maria, a child aged 9 years who was also his step sister.

The second count is also of Aggravated Defilement c/ss 129 (3), 129 (4) (a) & (c) of the Penal Code. It is alleged in that in the month of December 2020 in Kabuuma Village, Kiiza Regan performed a sexual act on Nalubega Maggie, a child aged 6 years who was also his step sister.

The background to this matter is that the juvenile offender pleaded not guilty at his arraignment. The state then called three witnesses.

PW 1 was Justine Nabbosa who is the step mother of the juvenile offender. She stated that she is the mother of Namatovu Maria, 9 and Nalubega Maggie, 6 (both hereafter also referred to as the victims). That on the 16th of April 2021 she wedded and spent a night with her husband at a Hotel in Bunga. The children were left at home with a maid and their aunt called Joan. Her husband - Muyomba Herbert is the juvenile Offender's biological father and Joan is his sister. Later that night, her husband received a call from his sister Joan who told him to hurry back home immediately as there was a problem.

PW 1 and her husband drove back to their home in Kabuuma in Makindye Sababagabo in Wakiso district. As soon as they drove through the gate, Kiiza ran away. When PW 1 spoke to both victims they told her that Kiiza had been performing sexual acts on them. That both girls said that Kiiza had put his 'susu' in her 'susu'.

The matter was reported to the police and Kiiza arrested. The victims were examined on PF 3A. In the case of Namatovu Maria, it was found that she had a ruptured hymen and possible urinary tract infection. She also had bruising suggesting a recent vaginal penetration. That Nalubega Maggie also had a ruptured hymen and possible urinary tract infection. That the bruising suggested vaginal penetration. Both children were called to testify.

The evidence of Namatovu Maria, 9, was received unsworn. She stated that she knew the offender who was in court to be punished. She said he had raped her. That she understood rape to mean child abuse. When asked to explain what she meant by that she was unable to do so. The Prosecution opted to withdraw her.

Nalubega Maggie, 6, testified as PW 3. She stated that Maria was her elder sister. She also gave evidence unsworn. Her evidence was that Kiiza raped her. She said she heard that word from her sister. That Kiiza used to beat her sister and her and that is what she understood by rape and why he was in court.

After these three witnesses the prosecution closed its case.

This ruling follows the close of the prosecution case. S. 73(1) of **The Trial on Indictments Act** which provides for this stage of proceedings stipulates,

*When the evidence of the witnesses for the prosecution has been concluded,…, the court, if it considers that there is no sufficient evidence that the accused ... committed the offence, shall, after hearing the advocates for the prosecution and for the defence, record a finding of not guilty.*

In essence the Court is enjoined to find whether there is a prima facie case against the offender. A definition of a prima facie case was given in the often cited case of **Ramanlal T. Bhatt v R (1957) E. A 332** at **335,** as:

*'It may not be easy to define what is meant by a prima facie case, but at least it must mean one on which a reasonable tribunal, properly directing its mind to the law and the evidence could convict if no explanation is offered by the defence.'*

The offence here is Aggravated Defilement c/ss 129 (3), 129 (4) (a) & (c) of the Penal Code. The state was required to prove three elements namely,

- 1. The victim was below 14 years of age - 2. A sexual act was performed on her - 3. By the offender

It must be shown that all three elements have been proved and if no explanation was offered by the defence at this stage, then the Court would convict.

In the first place, the victims are below 14 years of age. They testified in Court and it was plain to see that they were both under 10 years of age.

Secondly the medical evidence showed that there had been penetration of the vaginas which is proof of a sexual act.

The last element is participation. It must be demonstrated that the person indicted committed the offence. In the instant case, the only evidence so far is that of PW 1 -

Nabbosa the mother of the victims who said both children told her that the offender had performed a sexual act on them.

The first child, Namatovu Maria stated that Kiiza raped her. That she understood rape to mean child abuse. She could not state what child abuse was. I must state here that the child was articulate and able to express herself clearly in English.

The second child stated that she learnt of the word rape from her sister. She said it meant to beat. She said Kiiza used to beat them and that was why he was arrested.

In view of the testimony of the victims, this court finds that the evidence does not meet the high standard of proof in criminal cases principally with regard to participation. The children testified unsworn. Their evidence requires corroboration as a matter of law. Participation therefore could only be established by them and corroborated by other evidence. That is missing here.

All elements of the offence should be established to a standard beyond reasonable doubt. In the instant case, the evidence has failed to meet that standard with regard to participation of the offender and it cannot be said with certainty that it was he that committed the offence.

In the premises, a prima facie case has not been established against the offender and he is acquitted on all counts.

> ………………………….. **Michael Elubu Judge**

> > **21.9.2021**