Uganda v Nsengiyunva Davis alias Ivan (Criminal Session 144 of 2021) [2025] UGHC 335 (20 February 2025)

## 5 **THE REPUBLIC OF UGANDA IN THE HIGH COURT OF UGANDA HOLDEN AT KABALE HCT - 11 - CRIMINAL SESSION NO. 0144 OF 2021 (Arising from Kisoro Criminal Case No. 0041 of 2020) (Arising from Kisoro CRB 611 of 2020)** 10 **UGANDA** ::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::**PROSECUTION VERSUS**

## 15 **NSENGIYUNVA DAVIS alias IVAN**::::::::::::::::::::::::::::::::::::::::::**ACCUSED**

## **BEFORE HON. JUSTICE SAMUEL EMOKOR**

## **JUDGMENT**

Nsengiyunva Davis alias Ivan who for the rest of my Judgment I shall refer to as the Accused is indicted for **Aggravated Defilement** contrary to **Section 129(1)(3)(4)(a)** of the **Penal Code Act**. The particulars giving rise to the indictment are that Nsengiyunva Davis alias Ivan on the 12/10/2020 at Kashija

25 Cell, Rubuguri Town Council in Kisoro District performed a sexual act with KT a girl aged 13 years.

The Accused pleaded not guilty.

I shall refer to the Victim in this case as KT.

30 **Representation:**

Ms. Nagayi Noeline (State Attorney) and Ms. Erone Nambi (State Attorney) appeared for the Prosecution while Mr. Nabaasa Rodgers represented the Accused on state brief. The Assessors in this trial were Ms. Idah Mugenga and Mr. Tumushime Emmanuel.

- 5 At the commencement of this trial pursuant to **Section 67** of the **Trial on Indictment** Act medical evidence in Police Form 24 which was in respect of the medical examination of the Accused was received as Exhibit P1. The report was to the effect that the Accused is an adult of sound mind. - 10 **The Burden and Standard of Proof.** This being a criminal case in which the Accused has pleaded not guilty the prosecution has the burden of proving its case against the Accused beyond reasonable doubt. The burden does not shift to the Accused person and the Accused can only be convicted on the strength of the Prosecution case and not on - 15 the weakness of the defence case. **See: Ssekitoleko versus Uganda (1961) EA 531.** - 20 **Ingredients of the offence.**

The prosecution must prove each of the following ingredients beyond reasonable doubt.

- **1) That the Victim was below the age of 14 years at the time of commission of the offence.** - 25 **2) That there was a sexual act performed on the Victim.** - **3) That it was the Accused who performed the sexual act.** - **a) Age of the Victim.**

Age may be proved by the production of a birth certificate, testimony of witnesses 30 or medical evidence where available. It has however been held that other ways of proving the age of a child can be equally conclusive such as the Courts own observation and common sense assessment of the age of the child.

5 **See Uganda versus Mawadri Joel H. Cr. Session No. 0012 of 2018.**

It is the evidence of the Victim in this case that she is presently 16 years and turning 17 in December 2024. It is also her evidence that in 2020 she was a Primary Four Pupil at Preparatory Primary School. Her evidence is corroborated

10 by that of her father Agensi Emmanuel (PW1) who testified that KT was born on 10/12/2006 and on 12/10/2020 she was 13 years old. An immunisation card to this effect was received as Exhibit P2.

This Court had the opportunity to observe KT when she testified before it. Her physical features clearly showed that she was not yet an adult. The defence did

- 15 not challenge her age either. I therefore accept the evidence presented by the Prosecution that as of 12/10/2020 KT was a girl aged 13 years. This ingredient has been proved beyond reasonable doubt. - 20 b) **Sexual Act**.

**Section 166 (7)** of the **Penal Code Act** defines a sexual act to include penetration of the vagina, mouth or anus however slight by the sexual organ of another or unlawful use of any object or organ on another person's sexual organ.

25 The slightest penetration is enough to prove that a sexual act has taken place. **See Remigious Kiwanuka versus Uganda SCCA No. 0041 of 1995**.

Proof of sexual intercourse is normally established by the Victim's evidence,

30 medical evidence and any other cogent evidence. In the instant case the Victim KT (PW2) testified that in 2020 the Accused sent for her and she met him in a Kiosk made of timber where he pulled her in, overcame her resistance, removed her pants and knickers got on top of her and

- 5 proceeded to have sexual intercourse with her that lasted for about 5 minutes and that while they were starting to dress up her father (PW1) entered the kiosk and found the Accused still struggling to wear his trouser that was halfway his buttocks. According to KT she had sex with the Accused four times before the date in issue. - 10 This evidence is corroborated by that of the Victims father Agensi Emmanuel (PW1) who testified to torching inside the Kiosk and seeing the Accused on top of his daughter having sexual intercourse with her as she leaned against the wooden counter. Further corroborative evidence was given by Juptus Brenda (PW4) an enrolled midwife and stepmother to the Victim KT who testified to examining her - 15 on the night of the 12/10/2020 upon the request of her husband Agensi (PW1) and that as the Victim KT removed her kickers she noticed substances like semen on it and when she examined her vagina she found that she was not a virgin because she had no hymen and there was a lot of milky discharge flowing back. According to Juptus (PW4) KT confessed to them that she had on 4 different 20 occasions had sexual intercourse with the Accused. - The evidence of PW1, PW2 and PW4 is to the effect that the Victim KT was that night medically examined and the report returned to the investigating officer. There was no explanation why this report was not tendered in by the Prosecution. This fact notwithstanding the evidence of the Victim KT, that of her father PW1 - 25 and stepmother (PW4) all point to the fact that the Victim was engaged in a sexual act on the night in issue albeit not for the first time.

I do not therefore consider it fatal to the Prosecution case that no medical evidence was adduced by the Prosecution.

5 The prosecution it is my finding has proved beyond reasonable doubt that a sexual act was performed on the victim KT.

**c) Participation of the Accused.**

It is the evidence of the Victim KT (PW2) that she knows the Accused well and 10 that he is an uncle to her father (PW1). That in 2020 the Accused sent for her through one Peter in the evening at about 7:30PM that he had a message for her from her father and that Peter led her to some shops and left her there. That after 5 minutes when she saw no one coming she decided to leave and when passing by a Kiosk she was pulled inside and that she tried to resist the person pulling her

- 15 but she was over powered and then she recognised him as Ivan because his phone torch had been switched on and that he asked her to cool down and because she had been over powered she let him do what he wanted. That the Accused then removed her pants and kickers then got on top of her and began to have sexual intercourse with her. KT admits that this was the 4th time the two of them were - 20 having sex and that she had resisted at first because she had not known that it was the Accused. According to KT (PW2) when they had finished having sex her father (PW1) came to the Kiosk as they were dressing and that his torchlight from the phone was on. That the Accused tried to run out and her father chased after him as she also ran back home. KT states that at home her stepmother examined 25 her and that she told her and her father that she had been engaged in sexual - intercourse with the Accused.

The evidence of KT is corroborated by that of her father Agensi Emmanuel (PW1) who testified that he knows the Accused very well because the Accused is his uncle

30 and that on the date in issue of the 12/10/2020 he had returned home between

- 5 8:00PM 9:00PM and on not finding his daughter KT (PW2) at home he moved out in search of her along the shops and that when he got to the Kiosk he heard a voice saying *"get off me I want to go"* and it was a female voice and so he flashed his torchlight from the phone and opened the door to the Kiosk and saw Ivan the Accused on top of his daughter (PW2) having sexual intercourse with her. That - 10 he held the belt of the Accused's trouser which was open at the front and when the Accused turned to face him he recognised him and asked him "*Ivan is that you having sex with my daughter?"* That he asked him again "*Ivan my uncle you are the one having sex with my daughter?"*

That the Accused replied saying "*Pastor the truth is there is nothing we were*

15 *doing. We were just talking"* According to Agensi Emmanuel (PW1) the Accused tried to push him aside and he struck him (Accused) with his stick but because he was not wearing his shoes well he (PW1) fell down and the Accused ran away.

The Court in **Abdalla Bin Wendo versus R (1953) 20 EACA** laid the following 20 conditions as necessary for correct identification;

- **1) Familiarity of the Accused to the witness at the time of the offence.** - **2) Conditions of lighting.** - **3) Proximity of the Accused to the witness at the scene of the crime.** - **4) The length of time the Accused came under the observation of the** 25 **witness.**

The Victim KT testified that the Accused was her father's uncle which was corroborated by her father Agensi Emmanuel (PW1) who testified that the Accused is indeed his uncle. In a surprising turn of events the Accused in his defence denied knowing KT saying he was seeing her in Court for the first time

- 5 and had never heard of her before then. In reference to Agensi Emmanuel (PW1) he said that knows very little about him. I do not believe the Accused to be telling the truth at all. The opportunity to put this to the two Prosecution witnesses was in cross examination and this was never raised. I believe that it is the shame of having sexual intercourse with a girl who is who is his granddaughter that has - 10 forced the Accused to try and put some distance between him and his Victim KT. In most cultures if not all the actions of the Accused is considered to be a taboo. Brushing aside the shame of the Accused I accept the evidence of KT and Agensi Emmanuel (PW1) that they both know the Accused and are related to him. This - 15 familiarity would therefore be a factor that would aid in the identification of the Accused and in the case of KT (PW2) she had prior to the 12/10/2020 been engaged in sexual intercourse with the Accused on three separate occasions. She therefore was familiar with the Accused.

It is the evidence of KT that she first resisted the Accused when he pulled her into

- 20 the Kiosk because she did not know that he was the one but when the torch of the mobile phone that he was having lit his face and he told her to calm down she realised that he was the one. The light given off by the torch light from the Accused's phone did aid in identification and so did the torchlight given off by Agensi Emmanuel (PW1) when he flashed into the Kiosk and found the Accused - 25 and KT engaged in sexual intercourse.

The proximity between the Accused and KT when they engaged in sexual intercourse was zero distance, one could be forgiven for saying so and this proximity does very much aid in identification.

- 5 As for Agensi Emmanuel (PW1) he entered the Kiosk and confronted the Accused who had to push passed him to get out of the Kiosk and this must obviously have been at a close proximity given the evidence on record including the sketch map in Exhibit P3 that shows the kiosk to contain a single entry and exit. This proximity did aid in his identification of the Accused. - 10 According to KT the sexual intercourse that she had with the Accused lasted for only five minutes. This coupled with their conversation and brief struggle at the beginning was sufficient time to allow the Victim KT to identify the Accused. Agensi Emmanuel (PW1) on the other hand had verbal exchanges with the Accused in which he demanded to know how the Accused his uncle could engage - 15 in sexual intercourse with his daughter while the Accused tried to cover up that nothing had happened and the two of them were only talking. This back and forth the between two persons who are familiar with each other does provide sufficient time for identification. I do not accept the defence of alibi raised by the Accused in his unsworn statement that he was not in the Kiosk and that Agensi Emmanuel - 20 (PW1) offered him the option of dropping the charge against him if he would pay him some money which he did not have. I do not believe that there is any truth to this defence. Agensi Emmanuel (PW1) struck me as a very serious and focused man. I do not at all believe that he was driven by any financial gain when he reported this matter to the Police. - 25 The manner in which he has pursued this matter right from Police to its Prosecution before this Court is an action of a concerned parent and nothing else. I believe that the Accused coined this story to tarnish the reputation of Agensi Emmanuel (PW1) I do not accept it.

- 5 The evidence presented by the Prosecution has been very consistent and cogent. The defence tendered to this Court the Police statements of Agensi Emmanuel (PW1) in Exhibit D1 to highlight omissions in his statement but the omissions are minor and the statements are consistent with the evidence given before this Court that he (PW1) found the Accused and his daughter KT in the Kiosk where they - 10 engaged in sexual intercourse. The statements in Exhibit D.1 actually reinforce the fact that there was no error in the identification of the Accused by both Agensi Emmanuel (PW1) and KT (PW2). The defence of alibi put up by the Accused has been discredited by the Prosecution evidence.

After considering the evidence adduced by the Prosecution and defence together

15 and in full agreement with the Assessors it is my finding that the prosecution has successfully proved its case beyond reasonable doubt and I find the Accused guilty of the offence of Aggravated Defilement contrary to **Section 129(1)(3)(4)(a**) of the **Penal Code Act** and convict him of the same.

Before me,

20 …………………………………….

**Samuel Emokor Judge 20/02/2025.**

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