Uganda v Mulinda (HCT-17-CR-SC-0345-2024) [2024] UGHC 1257 (11 September 2024)

**THE REPUBLIC OF UGANDA**

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

**HCT-17-CR-SC- 0345-2024**

**(Arising from NGM-AA-021-2023)**

**NGM/CRB/142/2023**

**UGANDA…………………………………………PROSECUTION**

**VERSUS**

**MULINDA SIMON ……………………………………. ACCUSED**

**BEFORE LADY JUSTICE HENRIETTA WOLAYO**

**JUDGMENT**

Introduction

1. The accused person Mulinda is indicted with aggravated defilement c/s 129 (3) (4) (a) of the Penal Code Act as amended. It is alleged that on 19.7.2023, at Kayonza village, Kinoni sub county in Nakaseke district, he performed a sexual act on Nsingwire Grace (N. G) alias Nyakato, a girl aged 9 (nine) 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, Kyalimpa Evelyne and Rev. Mwesigye Samuel 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 21.8.2024. Prosecution was represented by Kirabo Rachel, State Attorney while the accused was represented by Damba Emmanuel 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. Prosecution relied on both the medical evidence in PF3A which was admitted by consent of both counsel and marked Pexh.1 and the oral testimony of the victim’s mother. The medical report shows that on 25.7.2023, Nsabiwawe Geoffrey, a health professional at Ngoma Health Centre IV examined the victim N. G and found that she is (eleven) 11 years based on detention and physical appearance. 2. According to the victim’s mother, Kanyamugando Winnie PW1, aged 40 years, a resident of Kayonza village, Kinoni sub-county in Nakaseke district, the victim was born in 2013 which makes her eleven (11) 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

1. To prove this ingredient, prosecution relied on both medical evidence and witness testimony. Nsabiwawe Geoffrey, a health professional at Ngoma Health Centre IV examined the victim N. G and captured the findings on PF3A. The examining practitioner found no injuries, neither where there any tears but he saw a discharge which he concluded was evidence of an STD.

Participation by the accused person

1. It is not disputed that the accused person was known to all the three witnesses to wit; Kanyamugando Winnie, PW1 the victim’s mother, N. G, PW2 the victim and Musimenta Jonah, PW3 as Mulinda Simon and that he lived with and worked as a herdsman for Kanyamugando’s father, Tukwe Samwiri. 2. According to Kanyamugando Winnie,PW1, on 19.7.2023, before she left for church, she had locked the home as the children were at school, and as the children returned home before her, she kept the key at her father Tukwe Samwiri’s home as she usually does and this is where the children picked them. It was further her testimony that on return from prayers at 4pm, she found when the beds she had made were not made upon which Musimenta told her he had left N. G with the accused in the house. 3. On asking her son Musementa PW3 what happened, Musementa disclosed to her that he had left the accused and the victim in the house and when he called her, the accused stopped her from going with Musementa and proceeded to defile her. According to Kanyamugando, the accused gave money to N. G telling her not to disclose. It was Kanyamugando’s testimony that she examined the victim and found her with tears and blood whereupon she took her to a government hospital. 4. According to the victim N. G, aged 11 years old and a pupil of Primary One at Kayonza Primary School, on 19.7.23, the accused defiled her from her mother’s house when her mother Winne had gone to church. It was the victim’s testimony that the accused asked for milk and when she gave it to him, he showed her a phone that had a woman sitting on a chair. He then took her to the bedroom, placed her on the mother’s bed and defiled her after which she went to her grandfather’s home. She did not share with Musementa what had happened. It was her testimony that no one saw the accused defiled her and that her brother Musementa was at Muze’s place. 5. No one saw Mulinda defile her as Musimenta had gone to Mzee’s (Tukwe) home, and that she did not tell him about the defilement so she did not know how he got to know about it. 6. It was the testimony of her brother Musementa aged 11 years that on 19.7.2023, were on their way from school when they passed by mzee Samwri’s place where they found the accused person who moved with them to their home. On arrival at their home, the accused sent Musementa to pick his cane and before he left, Simon gave him 100/ and Musementa saw the accused defile the victim from their mother’s home at 1 p.m. 7. In defence, the accused person made a sworn statement. He denied defiling the girl as he did not go to their home that day, neither did he spend the day at Mzee’s place. He testified that he only goes to the victim’s place only when Mzee sends him. This is corroborated by Kanyamugunda who testified that she rarely saw the accused at her home and that he would come there possibly after a month or so. 8. According to the accused, on 19.7.2023, he woke up at 6:00am and went to milk cattle with other workers, Kayesigye, Musinguzi and Kalongo and were done by 9:00am upon which they took the milk to the grandfather’s home. At about 10:00am, the grand mother called Jovia sent him to Kagonza trading centre to bring maize flour which he did in about five minutes. Mulinda further testified that he never saw the victim and Musimenta between 1pm and 4pm as they had gone to school, he only saw them in the morning as they headed to school at about 7:00 am as they passed by the place where they milked from, as their home is near the kraal. 9. From the foregoing analysis, the two key witnesses Musementa and the victim gave inconsistent accounts of what happened which makes it difficult for me to make sense of their testimony. These contradictions coupled with the consistent defense case makes me wonder if the children were not coached to testify. Furthermore, medical evidence was not conclusive. A discharge is not evidence of STD without other facts like foul smell and better still, laboratory tests. In fact, the mother’s testimony contradicts medical evidence in as far as she saw blood and tears, findings that are missing from PF3A. This means, a discharge alone is insufficient evidence of performance of a sexual act. 10. For the foregoing reasons, I agree with the assessors that the accused is not guilty and he is acquitted of the offence indicted. He is released from custody unless lawfully held in connection with some other offence.

**DATED AT NAKASEKE THIS 11TH DAY OF SEPTEMBER 2024.**

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

**LADY JUSTICE HENRIETTA WOLAYO**

**Legal representation**

Kirabo Rachel, State Attorney for the prosecution

Irene Akol for the accused on state brief.