Uganda v Odyek (HCT-CR-SC-038 OF 2025) [2025] UGHC 176 (11 April 2025)

## 5 **THE REPUBLIC OF UGANDA IN THE HIGH COURT OF UGANDA HOLDEN AT APAC**

## **CRIMINAL SESSION CASE NO. HCT-CR-SC-038 OF 2025**

**UGANDA………………………………..……………………….…. PROSECUTOR**

## **VERSUS**

15 **ODYEK FELIX….………………………………….…………………….. ACCUSED**

**BEFORE:** HON. MR. JUSTICE GEORGE OKELLO

## **JUDGMENT**

The accused is indicted for aggravated defilement contrary to section 116 25 (3) (4) (a) of the Penal Code Act Cap 128. The allegation is that on 28th January, 2018 at Te-ilwa Cell, Oyam District, the accused had unlawful sexual intercourse with A. Sandra (A. S) a girl under the age of 14. He pleaded not guilty on 05th March, 2025 and during the preliminary hearing, he and the prosecution agreed on PF3A (PEX1) on which A. S was 30 medically examined and her age assessed; and PF24A (PEX2) on which the accused was assessed as to his age and mental status, inter alia. Mr. Otwang Moses Okello and Ms. Adongo Janet qualified and were appointed court assessors with the concurrence of the defence and the prosecution. Prosecution called three witnesses being A. S, her cousin sister, and 35 biological mother. Court found a prima facie case and asked the accused

5 to defend himself. He gave sworn evidence and did not call any other witness.

Mr. Nandhuki Ivan Jonathan, a Senior State Attorney, and Mr. Owor Lewis, a State Attorney conducted the prosecution while Ms. Nakibira

10 Brenda represented the accused on State Brief. At the close of the defence, both counsel opted not to make final submission leaving the matter to court to decide. Court summed up the law and the evidence to the assessors who returned joint opinion on 03 April, 2025. I am grateful to the parties, their counsel, and the assessors.

The following are the ingredients of aggravated defilement contrary to section 116 (3) (4) (a) of the Penal Code Act Cap 128;

- i) The girl/ victim of the alleged sexual act was below the age of 14 20 at the date of the sexual act - ii) A sexual act was performed on the girl/victim - iii) It is the accused who performed the sexual act

I shall set out the key principles which shall guide me in this judgment.

Given the not-guilty plea, the accused person enjoys the constitutional right to presumption of innocence under article 28 (3) (a) of Constitution

- 5 of Uganda, 1995. It is, therefore, the duty of the prosecution to prove the accused's guilt and the standard of proof is beyond reasonable doubt. This burden never shifts to the accused person except in cases of insanity and a few statutory exceptions which are not applicable in the instant case. See: *Woolmington Vs. Director of Public Prosecutions [1935] A. C 462; Chan* - 10 *Kau Vs. R [1955] A. C 206; Uganda Vs. Dick Ojok (1992-93) HCB 54.*

Each of the ingredients of the offence must be proved by the prosecution beyond reasonable doubt. Proof beyond reasonable doubt does not, however, mean, proof beyond a shadow of doubt. What is required is strong

- 15 evidence against the accused person that leaves only a remote possibility in his favour. If the court finds on the evidence that what the accused person is accused of, is possible, and not in the least probable, then the standard of proof would have been met. Nothing short of that would suffice. See: *Miller Vs. Minister of Pensions [1947] All ER 272, at 373-374,* - 20 *Lord Denning.*

The accused person does not assume any burden of proof, a position bolstered by section 101 (2) and section 103 of the Evidence Act Cap 8. Where there is any doubt in the prosecution case the accused takes the 25 benefit of the doubt. Any defence not raised by the accused but where there is evidence of it must be availed to the accused person. See: *Abdu Ngobi Vs. Uganda, SC. Crim. Appeal No. 10 of 1991; Obwalatum Francis Vs.*


- 5 *Uganda, SC Crim. Appeal No. 030 of 2015; Mancini Vs. DPP (1942) AC 1; Didasi Kabengi Vs. Uganda (1978) HCB 216.* An accused can thus only be convicted on the strength of the prosecution case and not because of the weakness in his defence. See: *Ssekitoleko Vs. Uganda, [1967] EA 531.* The State cannot, for instance, merely rely on concessions made by the - 10 accused person. See: *FW Crowie Vs. R [1961] 1 EA 38 (CAN).* Court must consider and evaluate all evidence on record for the prosecution and the defence, if any. In *Abdu Ngobi Vs. Uganda, S. C Crim. Appeal No. 10 of 1991,* the Supreme Court stated the duty of court: - 15 *"Evidence of the prosecution should be examined and weighed against the evidence of the defence so that a final decision is not taken until all the evidence has been considered. The proper approach is to consider the strength and weaknesses of each side, weigh the evidence as a whole, apply the burden of proof as always* 20 *resting upon the prosecution, and decide whether the defence has* - *raised a reasonable doubt. If the defence has successfully done so, the accused must be acquitted; but if the defence has not raised a doubt that the prosecution case is true and accurate, then the witnesses can be found to have correctly identified the appellant as* - 25 *the person who was at the scene of the incidents as charged."*

5 I proceed to evaluate the evidence adduced by the two sides while bearing the stated principles in mind.

Age of a girl can be proved by one or a combination of the following ways, birth certificate, immunization card, school records, if any, of the girl;

- 10 testimony of the parents of the girl; the girl's own testimony regarding her age; medical evidence e.g. dentition and physical developments of the body of the girl which in medicine is termed tanner scale rating; court observation and common sense assessment of the girl. See: *Uganda Vs. Kagoro Godfrey, H. C Crim. Session Case No. 141 of 2002; Uganda Vs.* - 15 *Fulawak, Crim. Session case No. 85 of 2018; Uganda Vs. Onencan Innocent,* criminal session case No. HCT-08-CR-SC-0190 of 2023. Section 133 (3) of the Children Act Cap 62 also offers a useful guide on how age of a child can be determined although that section is concerned with determination of a child's age for the purposes of criminal responsibility. However, the - 20 section is also relevant when court is assessing the age of an alleged victim of sexual violence where the victim is alleged to be a child.

Regarding the age of the A. S, she testified that she was born on 17th July, 2004. She also stated that in 2018 when she was sexually assaulted, she 25 was in primary four. The mother of A. S a one Nyambubi Judith (PW3) testified that she gave birth to A. S on 17th July, 2004. A. S was examined at Anyeke health centre IV and the in-charge of the facility stated on PEX1


- 5 that she was 13 years based on tanner strategy. The defence did not doubt the age of A. S as at the date of the alleged offence on 28th January, 2018. I am satisfied this ingredient has been proved beyond reasonable doubt. I agree with the assessors in that regard. - 10 Turning to the element of sexual act, a sexual act is widely defined in section 116 (7) of the Penal Code Act Cap 128. It means (a) penetration of the vagina, mouth or anus, however, slight, of any person, by a sexual organ; or (b) the unlawful use of any object or organ by a person on a sexual organ (the vagina or penis of another person). This definition is 15 disjunctive meaning a sexual act must be viewed widely from the legislative - parlance thus either definition suffices as may be available in a particular factual setting.

In the present case, it is alleged the accused penetrated the vagina of A. S 20 with his penis. In *Wepukhulu Nyuguli Vs. Uganda, SC. Crim. Appeal No. 21 of 2001,* the Supreme court noted that penetration however slight suffices to prove sexual intercourse. This was also held in *Adamu Mubiru Vs. Uganda; C. A Crim. Appeal No. 47 of 1997.* It therefore appears the precedents informed the 2007 amendment to the Penal Code Act by Act 25 No. 8/2007 which cemented the principle that penetration for the purposes of sexual act need not be deep. And that is why section 116 (7) of the Penal Code Act and its earlier equivalent of Cap 120 provided under

- 5 section 129 (7) (a) that sexual act of penetration may be slight. Penetration can thus be proved either by the victim's evidence, medical evidence, or any other cogent evidence. See: *Remigious Kiwanuka Vs. Uganda, SC Crim. Appeal No. 41 of 1995; Uganda Vs. Sunday Herbert, HCT-01-CR-SC-162/2021*. It is of course not obligatory that medical evidence be produced - 10 to prove a sexual act. See: *Hussein Bassita Vs. Uganda, SC Crim. Appeal No. 35 of 1995.* But once medical evidence is adduced by the prosecution court will consider it. Court may also consider medical evidence alongside other cogent evidence. It is also a settled principle that rapture or nonrapture of the hymen per se is not conclusive proof of sexual intercourse - 15 or absence of it. It is also trite law that medical evidence is merely advisory and goes to the fact, not law, and court may reject it. See: *Rivel (1950) Cr. App R 871; Matheson 42 Cr. App. R 145.* Court can convict in the absence of medical evidence provided there is strong direct evidence when the circumstances of the offence are so cogent and compelling as to leave no 20 ground for reasonable doubt. See*: Anyolitho Vs. Uganda, Crim. App. No.22 of 2012 (COA).*

In the case at hand, A. S (PW1) testified that on 28th January, 2018 while at her parents' home in Atura, Te-ilwa Village, Atura Parish, Aber 25 Subcounty, Oyam District, she and a cousin sister- Akello Sandra were sent by Akello Winnie (a sister) to harvest cassava from a garden. While in the garden, the accused whom the witness knew and was resident in Te-

- 5 duka within Atura Parish, approached the girls. On seeing the accused approaching, the girls took off in fear as the accused was a known rapist in the area. The accused pursued the girls and caught up with Akello Sandra first. Akello wrestled free and escaped upon which the accused continued to pursue A. S. He caught up with her, tore her under-pant, - 10 threw A. S down, removed his penis, and inserted into the vagina of A. S. The accused did not use a condom. A. S felt pain in the vagina. A slimy discharge came from the vagina. The accused lasted for six minutes. The victim shouted but the accused never got off her. Abudu Duma responded to the alarm and raised a panga at the accused person who got up and 15 took off.

In her testimony, Akello Sandra (PW2) testified that she used to live at Teilwa with the parents of A. S. PW2 and A. S were instructed by Aceng Winnie (an elder sister of A. S) to go and harvest cassava at about 8:00am so at 20 9:00am the two went to the cassava garden and while there, the accused pursued the girls but caught up with A. S and had sexual intercourse with her for approximately six minutes and was only stopped by Duma Abudu who responded to the alarm of the girls. Abudu raised a panga at the accused who got up and ran away. PW2 says she watched the whole sexual 25 assault on A. S from a distance of 10 metres in broad day light as she kept coming backwards to see what the accused was doing to A. S. The girls narrated the ordeal to Nyambubi Judith (PW3). PW3 testified that on 28th

- 5 January, 2018, she returned from church at 10:00am and found her daughter A. S crying. On inquiring why she was crying, A. S told her that the accused had had sexual intercourse with her. PF3A (PEX1) shows that the genitals of A. S had visible signs of hyperemia surrounding the vulva. Hyperemia is an increased blood flow to a particular area. Online research - 10 indicates some of the causes of hyperemia as being inflammation or injury. On the probable cause of the injuries in the genitals, the medical officer stated that it was blunt trauma. Although not very conclusive, the medical report corroborates the testimonies of all the prosecution witnesses as to the sexual act. PW3 stated that A. S was administered Post Exposure - 15 Prophylaxis for the initial six months and went back for drugs for more six months to prevent possible HIV infection. The defence has not cast doubt on the fact of sexual act on A. S. I am satisfied that prosecution has proved the above ingredient of the offence beyond reasonable doubt. I am in agreement with the opinion of the assessors.

Regarding participation of the accused person in the unlawful sexual act, this can be proved through direct or circumstantial evidence. Circumstantial evidence is where reliance is placed on a set of existing circumstances which when put together irresistibly lead to no other 25 inference but guilt of the accused. See: *Tepper Vs. R (2) (1952) AC 480* (Privy Council Decision); *Simon Musoke Vs. R [1958] E. A 715; Akol Patrick Vs. Uganda [2006] HCB 7*.

In the instant case, I have partly captured testimonies of the prosecution witnesses while dealing with the second ingredient of the offence. I shall not repeat them. What I wish to emphasize is that all the prosecution witnesses say they know the accused person. PW1 (A. S) stated that the 10 accused was resident in Te-duka within Atura Parish. She testified that while in the cassava garden with PW2, the accused who was a known (suspected) rapist, appeared and was moving towards the girls. They saw him and decided to run. The accused pursued both girls, and first caught up with PW2 who wrestled free and ran away but stood at some distance 15 as the accused's focus shifted to A. S whom he pursued and caught, tore her underpants, threw her down, and had sexual intercourse with. PW1 says she felt pain. The accused lasted for six minutes. It was in the morning hours. Both PW1 and her cousin sister (PW2) related what happened to PW3 who is the biological mother of A. S. They stated that the 20 accused had pursued them in the cassava garden and sexually assaulted A. S. They also stated that it was Duma Abudu who stopped the continued sexual assault on A. S, otherwise, the accused would have continued. Abudu raised a panga and the accused got off and ran away. He had already penetrated PW1. A slimy discharge flowed from her vagina. A. S 25 was administered PEP which she took for the first six months, and went back for more for another six months. In cross examination, PW1 stated that although she does not remember the attire the accused wore, he was

- 5 well known to her and carried a nickname of Odyek Bombay and was resident in Te-duka Village. She also stated that the incident happened at about 9:00am in broad day light. On her part, PW2 repeated what PW1 said. She stated that when the accused first caught her, she wrestled free and outran PW1. When PW1 was caught by the accused, PW2 started - 10 returning slowly to see what the accused was doing to PW1. She also made alarm while PW1 cried. Abudu Duma responded and raised a panga at the accused who got up and took off. PW2 stood 10 metres away and watched the accused in the sexual act with A. S for about six minutes. She was still making alarm while the accused remained on top of PW1. Abudu told the - 15 girls he had been cutting trees in the area. They saw that the blade of his panga had tree saps. Abudu escorted the girls for a short distance before allowing them to continue back home as he continued with his work. PW2 added that they both recorded statements at Police in Atura. That is where she ended but A. S was taken to a health centre by Police and PW3 as PW2 - 20 went back home. In cross examination about what the accused was wearing, PW2 stated that the accused was wearing a black trouser and was bare-chested when he pursued the girls and sexually assaulted A. S (PW1). - 25 As noted, PW3 recounted what the two girls narrated to her on her returning from church at 10:00am. She found PW1 crying. PW3 took both girls to Atura Police Post. It was only A. S who was examined at Atura

- 5 health centre III and from there she was referred to Atapara Hospital where she was given PEP. The accused was arrested from his parents' home within the Township the very day of the incident by a female Police Officer (Brenda) of Child Protection Unit. PW3 knew the accused very well. In his defence, the accused testified that he was a resident of Te-ilwa Village, - 10 Atura Parish, Aber sub-county in Oyam District. He stated that on his arrest on 28th January, 2018, he told Police that he did not commit the crime. He also told Police that he did not know A. S. The accused testified that he only came to know A. S from the court hall. The accused stated that he never went out of home on the day in question and never met the two - 15 girls. He was alone at home and was clearing grass from the compound. He did not have a wife. He conceded he knew Duma Abudu but did not see him on the day alleged. Abudu was resident in Te-ilwa. The accused also knew PW3 as village mates. There was no grudge between the accused and the family of PW3. Asked by court why he thinks the allegation was made - 20 up against him and not Duma Abudu who was cutting trees in the area where the crime was committed, the accused avoided the question. In cross examination, the accused stated that he was born in 1986 in Te-ilwa and grew up from there. He studied from within Te-ilwa right from primary level to senior three.

Having summarized the key aspects of the testimonies of the two sides, I find that the accused was placed at the scene of the crime by PW1 and

- 5 PW2 who knew him very well. They were categorical on how they were both pursued by the accused person before he caught up with and sexually assaulted PW1 (A. S). PW1 and PW2 told PW3 who had just returned from church that it was the accused who sexually assaulted PW1. They also spoke of how Duma Abudu intervened to rescue PW1 although the accused - 10 had already penetrated her vagina. The conditions for correct identification were good. The accused was known to PW1 and PW2. They identified him immediately he approached in the cassava garden. It was just 9:00am and the sun was bright. He first pursued both girls, and first caught up with PW2 who subsequently wrestled free escaping from his grip. He later - 15 pursued and caught up with PW1 whom he threw down, tore her underpant and sexually assaulted. All these acts were at close range and lasted six minutes. The accused does not deny being a resident of the same Parish and confirms his residence just as all the prosecution witnesses. Thus his denial that he knew the two girls and yet he knew PW3 who is - 20 the mother of A. S (PW1) was mere escapist and dishonest of him. PW1 and PW2 were consistent on their accounts. They had no reason to make up a story and frame the accused. The accused concedes there was no grudge with the family of A. S (PW1). PW3 corroborated the eye witnesses. The girls reported to her and named the accused person as the assailant of A. S - 25 (PW1). They did not accuse Abudu who was also in the area. Abudu was a rescuer. I believe the prosecution case. I note from the digital calendar that 28th January, 2018 was indeed a Sunday. So PW3 must be correct when

- 5 she says she had just returned from church at 10:00am when she found the daughter crying who then narrated together with PW2 what had befallen her. The accused was placed at the scene of the crime as the person who sexually assaulted A. S. There is no way A. S could have been put on PEP for a whole year if she was not sexually assaulted. It was the - 10 accused who did it having been placed at the scene of the crime. I find that the prosecution has proved this ingredient of the offence beyond reasonable doubt. The evidence of the victim was well corroborated in all respects. I do not need to warn myself or the assessors but if any was required I warn them now and myself. But in agreement with them, I - 15 convict the accused Odyek Felix of aggravated defilement contrary to section 116 (3) (4) (a) of the Penal Code Act.

Dated, signed and delivered at Apac this 10th April, 2025

George Okello 20 JUDGE

**Judgment read in Court**

11: 15 am 10th April, 2025

25 **Attendance**

Accused person in Court Mr. Owor Lewis, on State Attorney, for the Prosecution Ms. Nakibira Brenda, Defence counsel on State Brief Assessors in court

30 Ms. Sophia Akello, Court Clerk/ Lango Language Interpreter

George Okello JUDGE

## 5 **SENTENCING, THE SENTENCE, AND REASONS**

On convicting the accused for aggravated defilement contrary to section 116 (3) (4) (a) of the Penal Code Act, the learned State Attorney Mr. Owor submitted that the offence is rampant and there is public outcry. He added

10 that the offence left the victim with both physical and psychological trauma and was committed in broad-day light thus the convict acted with impunity and it took the intervention of a third party to rescue the victim from more rounds of sexual intercourse. Counsel proposed 30 years' imprisonment. He cited past sentencing decisions in support.

In mitigation, Ms. Nakibira submitted that the convict is remorseful and seeks for forgiveness from the victim, her family, and all Ugandans. She added that the convict is a first offender and is aged 38 and will reform. Learned counsel further submitted that the convict is a sole breadwinner

20 for his family. Counsel stated that her client has been on remand for 07 years 01 month and 20 days. This period was confirmed to court by the Chief Warder II Ongom James. Counsel proposed 15 years' imprisonment. In further mitigation, the convict addressed court and prayed for 07 years' imprisonment. Court adjourned the matter to 11th April, 2025 for 25 sentencing.

The maximum punishment for aggravated defilement under section 116 (3) of the Penal Code Act Cap 128 is death sentence. However, under

- 5 paragraph 18 of the Constitution (Sentencing Guidelines for the Courts of Judicature) (Practice) Direction, L. N No. 8 of 2013, death penalty is reserved for cases that fall in the category of the "rarest of the rare" Here neither the death penalty nor life imprisonment which is the second heaviest punishment, was proposed. Only prison terms have been - 10 proposed and counter proposed. The sentencing range for aggravated defilement provided in part 1 of the Third Schedule of the Guidelines is 30 years' imprisonment up to death, with the starting point being 35 years. However, the sentencing guideline has to be applied while considering the past sentences in cases bearing similar resemblance though not - 15 precedents. Past cases do, however, afford material for consideration. See: *Ogalo s/o Owoura Vs. R (1954) 21 EACA 270*; *Livingstone Kakooza Vs. Uganda, SC Crim. Appeal No. 17 of 1993*; *Ninsiima Gilbert Vs. Uganda, C. A Crim. Appeal No. 180 of 2010*. - 20 In the case of *Kobushese Vs. Uganda, C. A Crim. Appeal No. 110 of 2008* the Court of Appeal upheld a sentence of 17 years' imprisonment imposed by the High Court where the convict, a 30-year-old man had defiled a 5 year-old girl. In *Ninsiima Gilbert Vs. Uganda* (supra), the Court of Appeal set aside the sentence of 30 years' imprisonment imposed on the convict 25 and substituted it with a sentence of 15 years for aggravated defilement. In *Ntambala Fred Vs. Uganda, Crim. Appeal No. 34 of 2015*, the Supreme

Court upheld a sentence of 14 years' imprisonment for aggravated


- 5 defilement imposed by the trial court and upheld on first appeal by the Court of Appeal. There, the victim was 14 years old. In *Komakech Samuel vs. Uganda, C. A Crim. Appeal No. 440 of 2014* a sentence of 16 years' imprisonment imposed by the trial court on the appellant whose age was not indicated and who had defiled an 8-year-old girl was upheld by the - 10 Court of Appeal. Notably, the Court of Appeal in the recent past have imposed higher sentences for cases of similar nature as the present. Thus in *Masaba Francis Vs. Uganda, CACA No. 0182 of 2012* decided on 11 March, 2025, the Court of appeal approved the sentence of 25 years' imprisonment handed by the trial court where the appellant had defiled a - 15 9-year-old girl. The court cited three of its past decisions, namely, *Mugisha Demiriyani Vs. Uganda, Criminal Appeal No. 161/2014* where the Court upheld a sentence of 30 years' imprisonment for aggravated defilement of a 10 year old girl; *Okello Basil Vs. Uganda, Criminal Appeal No. 294/2017* where the Court upheld a sentence of 32 years' imprisonment for 20 aggravated defilement of a 12 year old girl; and *Bashir Burahuri Vs. Uganda, Criminal Appeal No. 025/ 2015* in which the Court upheld a sentence of 40 years imprisonment for aggravated defilement of a 12 year

old girl.

25 In the present case, hyperemia which is usually caused by injury and inflammation was visible in the victim's vagina. She was forced into the sexual act and defiled in the full glare of her cousin sister. The victim was

- 5 only 13 years old while the convict was 32 thus he was 19 years older. The offence is quite rampant as court noted during the criminal session. It was second to murder cases. The victim was made to swallow PEP for a whole year to prevent a possible HIV infection which exposed her organs to damage. These aggravate a possible punishment. Accordingly, the 15 - 10 years' imprisonment proposed by defence counsel and the 08 years proposed by the convict would be disproportionately low if accepted and I reject them. I have, however, considered the fact that the convict is a first offender and sought for forgiveness, meaning, he must have reflected on his crime and now speaks from a contrite heart. He is also a breadwinner - 15 to his family and is capable of reforming given his age of 38. These mitigate the 30 years' imprisonment proposed by the state counsel. I would thus find 19 years' imprisonment to be an appropriate sentence in the circumstances. Taking into account the 07 years, 01 month and 20 days spent on remand by the convict which I deduct from the 19 years, I now 20 sentence you Odyek Felix to 11 years 10 months and 10 days' imprisonment for aggravated defilement contrary to section 116 (3) (4) (a) of the Penal Code Act Cap 128 starting from 10th April, 2025 the date of conviction. - 25 The convict Odyek Felix is advised of the right of appeal to the Court of Appeal of Uganda at Kampala against both the conviction and the sentence

5 within 14 days from today 11th April, 2025 being the date of the sentencing, if dissatisfied.

Dated at Apac this 11th April, 2025

George Okello JUDGE

19