Uganda v Okello Bonny alias Akoc (HCT-10-CR-SC-0177 of 2022) [2025] UGHC 177 (10 April 2025)

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

## **CRIMINAL SESSION CASE NO. HCT-10-CR-SC-0177 OF 2022**

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

## **VERSUS**

15 **OKELLO BONNY alias AKOC………………….…………………….. ACCUSED**

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

## **JUDGMENT**

- 25 Having been indicted with the offence of aggravated defilement contrary to section 116 (3) (4) (a) of the Penal Code Act Cap 128, the allegation against the accused person is that he unlawfully performed a sexual act with A. Miriam (A. M) a girl aged 07 years. The act is alleged to have been committed on 27th January, 2022 at Bar-Olimo Village, Agwaa Parish, 30 Aleka Sub-County in Oyam District. During plea taking on 28th January, 2025, the accused pleaded not guilty subsequent to which court conducted preliminary hearing during which PF3A on which A. M was medically examined at Otwal health-centre III was admitted in evidence as PEX1; her photograph showing blood flowing from her genital down to the 35 thigh was admitted as PEX3; and PF24 (PEX2) being the examination of - the accused as to his age, mental status, done from Anyeke health-centre

5 IV. Mr. Otwang Moses Okello and Ms. Adongo Janet were, without any objection, chosen and sworn as court assessors.

Mr. Nandhuki Ivan Jonathan, Senior State Attorney, and Mr. Owor Lewis, State Attorney, prosecuted the case while Ms. Nakibira Brenda defended

- 10 the accused on State Brief. Both sides opted not to make final address and left the matter to court. Court is grateful to both sides for the expeditious and professional conduct of their respective client's cases. Court summed up the law and the evidence to the assessors who returned joint opinion. - 15 During the trial, Prosecution called three witnesses, namely, the paternal grandmother of A. M; the biological father; and a former step-mother. A. M appeared in court but court was informed she could not remember the event of 27 January 2022 or anything that happened then. Court dispensed with her. The accused gave sworn evidence and called his 20 spouse in further defence.

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

- 25 i) The girl/ victim of the alleged sexual act was below the age of 14 at the date of the sexual assault - ii) A sexual act was performed on the girl/victim


5 iii) It is the accused person who performed the sexual act

I proceed to set out the key principles which shall guide court in this rendition.

- 10 Given the accused's plea of not guilty, he enjoys constitutional right to presumption of innocence under article 28 (3) (a) of Constitution 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 of proof never shifts to the accused person except in cases of - 15 insanity and a few statutory exceptions which are not applicable here. See: *Woolmington Vs. Director of Public Prosecutions [1935] A. C 462; Chan Kau Vs. R [1955] A. C 206; Uganda Vs. Dick Ojok (1992-93) HCB 54.*

Each ingredient of the offence must be proved by the prosecution beyond 20 reasonable doubt. Proof beyond reasonable doubt does not, however, mean proof beyond the shadow of doubt. What is required is strong evidence against the accused person that leaves only a remote possibility in his favour. If the court finds on the evidence that what Okello Bonny alias Akoc is accused of, is possible, and not in the least probable, then the 25 standard of proof would have been met. Nothing short of that suffices. See: *Miller Vs. Minister of Pensions [1947] All ER 272, at 373-374, Lord Denning.*


- 5 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. And where there is any doubt in the prosecution case the accused takes the benefit of the doubt. Any defence not raised by the accused but where there is evidence of it, must be availed to him. See: *Abdu Ngobi Vs. Uganda,* - 10 *SC. Crim. Appeal No. 10 of 1991; Obwalatum Francis Vs. Uganda, SC Crim. Appeal No. 030 of 2015; Mancini Vs. DPP (1942) AC 1; Didasi Kabengi Vs. Uganda (1978) HCB 216.* An accused can 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 simply rely - 15 on concessions made by the accused person. See: *FW Crowie Vs. R [1961] 1 EA 38 (CAN).*

Court must consider and evaluate all evidence on record for both the prosecution and the defence, if any. In *Abdu Ngobi Vs. Uganda, S. C Crim.* 20 *Appeal No. 10 of 1991,* the Supreme Court made the point clear:

*"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* 25 *approach is to consider the strength and weaknesses of each side, weigh the evidence as a whole, apply the burden of proof as always resting upon the prosecution, and decide whether the defence has*

5 *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 the person who was at the scene of the incidents as charged."*

I proceed to evaluate the evidence.

Age of a girl can be proved in any of the ways listed, namely; birth certificate, immunization card, school records, if any; testimony of the parents of the girl; child's own testimony regarding her age; medical

- 15 evidence e.g. dentition and physical developments of the body otherwise called tanner scale rating; court observation and common sense assessment of the child. See: *Uganda Vs. Kagoro Godfrey, H. C Crim. Session Case No. 141 of 2002; Uganda Vs. Fulawak, Crim. Session case No. 85 of 2018; Uganda Vs. Onencan Innocent,* criminal session case No. HCT- - 20 08-CR-SC-0190 of 2023. Section 133 (3) of the Children Act Cap 62 also offers useful guide on how age of a child can be determined although the section is concerned with determination of age for the purposes of criminal responsibility which in court's view still applies to cases of sexual violence where the victim is said to be a child.

In the instant matter, the biological father of A. M a one Okello Denis Giss a 31-year-old, testified that A. M was born 25th November, 2015. The

- 5 medical form (PEX1) puts her age at between 6-7 based on the history and physical development of her body. Court also saw the victim in court although she did not testify. I also noted the photograph (PEX3). A. M was and is still quite young at the date of the alleged offence. The defence has not cast doubt on the age of A. M as at the date of the alleged offence on - 10 27th January, 2022. I agree with the assessors that the age of A. M has been proved beyond reasonable doubt. She was under 14 at the material time. In fact, I find that she was 07. This element of the offence has been proved. - 15 Regarding sexual act, it 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 disjunctive and thus a sexual act 20 must be viewed from either context one of which suffices depending on the facts before court.

In the case at hand, the allegation is that the accused penetrated the vagina of the victim with his penis. In *Wepukhulu Nyuguli Vs. Uganda, SC.*

25 *Crim. Appeal No. 21 of 2001,* the Supreme court held that penetration however slight suffices to prove sexual intercourse. See also *Adamu Mubiru Vs. Uganda; C. A Crim. Appeal No. 47 of 1997.* It seems these decisions


5 partially informed the amendment to the Penal Code Act by Act No. 8 of 2007 where the principle that penetration for the purposes of a sexual act need not be deep was expressly legislated. I think that is why section 116 (7) of the Penal Code Act and its earlier equivalent of section 129 (7) (a) of Cap 120 provided that a sexual act of penetration may be just slight.

Regarding proof, courts have held that penetration can 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 also not obligatory that

15 medical evidence be produced 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 consider medical evidence alongside other cogent evidence. It is also trite law that rapture or non-rapture of the hymen per se is not conclusive proof of 20 sexual intercourse or absence of it. 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 25 ground for reasonable doubt. See*: Anyolitho Vs. Uganda, Crim. App. No.22*

*of 2012 (COA).*


- 5 In the case at hand, Ajok Santa (PW1) who is a 60-year-old grand-mother of A. M testified that A. M has lived with her since birth. On a date PW1 could not recall, she was going to harvest cassava in their garden and A. M decided to go ahead of PW1 while the witness was still at home administering medicine to her sick husband. PW1 joined A. M in the 10 cassava garden but found A. M crying. A. M could not talk. The two returned home, and A. M's step-mother a one Mercy (Amongi) (PW3) and PW1 took A. M to hospital (Otwal Health Centre III). The victim was examined. A female nurse checked A. M's genitals and informed PW1 and PW3 that A. M had been defiled. PW2 (Okello Denis Giss) who is the biological father of 15 A. M testified that on 27th January, 2022, after garden work, he returned home at 10:00am. Shortly, he went to a friend's home. While there, Amongi Mercy (PW3 and a former second-wife of the witness) called him and narrated to PW2 that A. M was found crying in the cassava garden by PW1. - So PW2 decided to return home. He found A. M still crying and her leg and 20 thigh had blood. According to PW2, some people were saying cassava stem had pricked A. M. PW2 asked A. M about what had happened but she could not talk. PW3 (Amongi Mercy) testified that she was once a spouse of PW2 but has since moved on effective 14th January, 2025. However, on 27th January, 2022, while living with PW2 and A. M, PW3 went to garden to dig - 25 leaving A. M and her grand-mother (PW1) and other children at home. The grand-mother was talking of going to harvest cassava. Subsequently PW3 saw A. M pass by the garden where PW3 was digging. A. M was carrying a

 - 5 hoe. Twenty minutes later, the grand-mother (PW1) also passed by heading towards the cassava garden. Thirty minutes later, PW3 saw PW1 return with A. M from the cassava garden but A. M was crying. PW3 decided to go back home. Lots of blood was coming out of A. M's vagina. PW1 and PW3 asked A. M what could have happened and A. M said it was Okello Akoc - 10 (referring to the accused) who injured her. A. M did not explain what was done to her that caused the injury. On another day, PW3 probed A. M about the injury and A. M said it was the accused who lifted her under coconut tree and removed her clothes. On further enquiry, A. M stopped talking and continued crying. Whenever PW3 asked A. M how the injury happened, she - 15 simply continued crying. PW3 and PW1 took A. M first to Otwal healthcentre III as blood was oozing from A. M's vagina. PW3 was referred to a clinic as the Health Centre lacked equipment for testing blood. The flowing blood was tested at a clinic of Omac John. The victim was referred back to Otwal health-centre III. A. M was examined from a maternity ward. A nurse - 20 cleaned the blood that was oozing from the vagina. The nurse said A. M had been defiled. A. M's vagina was stitched by the nurse in the presence of PW3. In cross examination, PW3 stated that it was the paternal uncle of the accused (Ojede Robert) who claimed a week after the incident that A. M had been pricked by cassava stem. In his defence, the accused (DW1) 25 confirms he found the victim crying on the road at about 9:35am but says it was on 17th January, 2022 (not 27th January, 2022 as per the indictment

and account by the prosecution witnesses). DW1 says he did not notice


- 5 any blood on the leg or thigh of A. M when he met her crying on the road near the cassava garden. The spouse of the accused Adye Miriam (DW2), however, testified that A. M was brought to her home/accused's home on the morning of the incident by the chairman LCI and A. M had blood flowing from the vagina to the thighs. PF3A (PEX1) and the photograph of A. M 10 which show the blood flowing from her vagina to the thighs (PEX3) - corroborate the accounts of the prosecution witnesses and DW2. The hymen of A. M was also raptured and there was visible swelling of the vulva and labia minora and majora, and fresh blood was oozing, as per PEX1. The examining senior medical clinical officer of Otwal health-centre III - 15 opined that the tear of the vagina/hymen was caused by forceful penetration. The officer observed A. M walking with difficulty. In light of the above evidence, and in the absence of any witness to support the proposition that A. M was pricked by cassava stem and given that no such stem was found at the scene according to the sketch-plan (PEX4) which 20 court has scrutinized, I am satisfied with the prosecution evidence which has proved beyond reasonable doubt that the tear and injuries to the genitals of A. M were caused by penile penetration and I agree with the

assessors in this regard.

25 Regarding the aspect of participation, I note that I have already touched on some pieces of evidence that mention the accused in the act. I will

5 proceed to evaluate the material on record which include the defence evidence side by side the prosecution version.

The victim's grand-mother (PW1) stated that as she headed to the cassava garden, she met the accused person on the road/ at a spring well (going

- 10 to collect/ fetching water). PW1 asked the accused whether his wife Adye Miriam (DW2) had returned from her parents' home. The accused responded that PW1 should not ask him. Where PW1 met the accused was approximately 200 metres from where PW1 had found the victim crying. PW1 conceded in cross-examination that she did not find the accused - 15 having sexual intercourse with A. M. The victim's father Okello Denis Giss (PW2) in his testimony related what his mother (PW1) had told him. He too conceded he did not find the accused in the sexual act with A. M. Amongi Mercy (PW3) testified that the victim disclosed to her that she was injured by Okello Akoc (the accused). As noted in my prefatory, the victim did not - 20 testify given her inability to recall what happened three years back as the case took longer to come to trial. However, I should clear the air by restating that the absence of the evidence of the victim of sexual assault may not always be adverse to the prosecution case provided there is some other cogent evidence. It is trite law that the evidence of witnesses to whom - 25 the victim made accusation can be admissible as part of the *res gestae* even where the victim does not testify provided the victim made a report to the witness contemporaneously with the offence. This view was opined in

- 5 *Bardu Mwindu Vs. Uganda, SC Crim. Appeal No. 15 of 1997*; *Umoroni Vs. Uganda [2002] 2 E. A 531*; *Moro Alex Vs. Uganda, Court of Appeal Criminal Appeal No. 0370 of 2015*; and *Uganda Vs. Kilama Christopher, Criminal Session Case No. 261 of 2022 reported in 2023 Ughccrd-46-2023*. - 10 In *Moro Alex Vs. Uganda* (supra), the Court of Appeal of Uganda gave the rationale for allowing the report a victim of sexual assault makes to third parties in evidence, noting that it is an exception to the hearsay role. Court expressed itself: - 15 *"It is because defilement cases are unique in the sense that the victims are sometimes persons who are not able to testify by reason of age or mental disability. If the strict rule on hearsay evidence was to be applied, then credible witnesses to whom the victims accused the perpetrators would be locked out and the heinous crimes* 20 *committed on such unfortunate victims would go unpunished."*

In the instant case, A. M told PW3 (Amongi Mercy) that Okello Akoc (referring to the accused) injured her. She also stated that the accused lifted her under coconut tree. Whereas A. M was not categorical to PW3 25 about how the injury was caused by the accused and only kept crying when pressed, I think her cries were due to the trauma she suffered. A. M nevertheless still gave pointers as to the cause of her injury when she said


- 5 Okello Akoc lifted her and her cloth under coconut tree and injured her. PEX4 which is the sketch plan of the crime scene shows drop of blood under coconut tree in the cassava garden near a hole the victim had attempted to dig in a bid to get some cassava tuber. The scene of crime officer's lack of testimony was cured by the fact that the sketch plan was - 10 admitted by consent of the parties.

Having mentioned the name of the accused to PW3, Police is said to have advised that another person puts follow-up questions to A. M other than PW3. According to PW3, a one Akello Stella who was an aunt to A. M asked 15 the victim one to two weeks later after the incident, and in the course of the conversation which P3 heard, the victim narrated to Akello that the accused injured her. PW3 says she was seated on the verandah of the house where the conversation happened, and she listened to everything. Akello of course did not testify but the statement by PW3 is direct evidence 20 as she speaks to what she could hear. Whereas according to PW3 Akello is said to have persuaded the victim that if she tells the truth of what happened to her, A. M's father and mother would not beat her but would buy for A. M good things, I do not think they corrupted the mind of A. M to concoct what never existed. I think that was their mode of persuading the 25 traumatized child to speak. According to PW3, Akello recorded A. M's voice on phone, and that she handed it to Police and the Doctor. The alleged

recording was not, however, tendered in evidence. This, however, does not

- 5 create serious dent on the prosecution case as court has other cogent evidence on record. PW3 was cross-examined by the accused at length. She was able to say a lot more than she had said in chief. She maintained that it is A. M who told her and people around that the accused defiled her. PW3 also asserted that the accused was arrested by the people (meaning - 10 the community members) because he was the one who was found (seen) on the road in the area where the victim was crying. And that according to Dr. Moses of Oyam health-centre IV where the victim was further examined on 28th January, 2020 (I think she meant 2022), the accused's blood was found in the vagina of the victim. I note the latter bit of the testimony to - 15 be hearsay as there is no such proof on court record. PW3 also stated in cross examination that the victim confided in her and Odongo Ray the chairman LCI, and Okello Sylvester, and others, that it is the accused who defiled her. PW3 stated that she rejected the claim by the accused's uncle (Ojede Robert) that the victim could have been pricked by cassava stem. - 20 PW3 further testified that she saw the accused walk to the spring well at 8:00am on the day in question as the spring was proximate to the garden where PW3 was digging. Whereas she did not see the accused in the sexual act PW3 says she saw him fetching water. PW3 clarified that the spring is approximately 70 metres from the cassava garden but the cassava garden 25 could not be seen from where PW3 was digging as it was obstructed by an - anthill. PW3 did not see any other person at the well that morning of the incident other than the accused person. PW3 asserted that the cassava

- 5 garden (scene of crime) is near the accused's home. On his part, the accused said he met the victim crying at approximately 9:35am as he was going to fetch water for the first round but denies seeing any blood on A. M's leg or thigh. He says he asked the victim why she was crying but she kept quiet. The accused also says when she met PW1 (victim's grand- - 10 mother) on the road as he headed to the well, he told her he had met the victim crying. PW1 was going to the cassava garden. PW1, however, does not speak about this particular conversation with the accused. She says when she met the accused she asked about his wife's return but the accused was not interested in discussing it and did not respond. On his - 15 part, the accused denies that PW1 engaged him in the particular conversation. The accused says when he went back for the second round of water and after filling his jerycan and was heading back home, he met the victim and grand-mother (PW1) walking back home with the victim a head of her holding a hoe. He claims the victim was not crying. The 20 accused, however, concedes when he first met the victim crying there was no other person in the vicinity. He, however, insists he never saw the victim bleeding when he first met her alone and at the time he met her walking back from the cassava garden with PW1. DW2 (Adye Miriam) who has been the spouse of the accused since 2012 stated that she is the senior wife and - 25 that the junior wife is Akullu Monica. After making a confused start, DW2 straightened her testimony by stating that she was at home on the day of the incident. The accused went to the spring well only once at about 8:00

- 5 am and brought for DW2 water for bathing their youngest baby. The chairman LCI Odongo Ray then came to the home of the accused/ DW2 with the victim. Akello Winnie the Vice Chair was also present. Present, too was the paternal uncle of the accused. The accused was asked by the chairman in the presence of whole if he defiled A. M and he denied. As a - 10 spouse, DW2 also asked the accused but he denied defiling the victim. When the chairman brought A. M to the home of the accused, DW2 saw blood on the thighs of A. M. Both the accused and DW2 were at home. Blood was flowing from the victim's vagina. DW2 stated that Santa Ajok (PW1) who is her step mother in law confirmed to DW2 that A. M was - 15 examined and was found to have been defiled. The sketch plan of the scene shows the cassava garden was on the upper side of the spring well in the direction of the accused's home. The Scene of Crime Officer found a drop of blood under a coconut tree in the cassava garden. There was also a hole which the victim had been attempting to dig in an effort to harvest cassava - 20 tuber from the ground. A bottle of beb wine (local wine) was found around the spot.

From the totality of the evidence, although no one saw the accused at the crime scene, the victim mentioned him to PW3 and Auntie Akello. The 25 accused himself stated that there was no other person in the area and that he met the victim alone. Having ruled out any other cause of the injury to the victim's genitals, and having concluded that there was penile

- 5 penetration, I find that other independent circumstantial evidence have corroborated the victim's testimony that she was with the accused person alone who defiled her. The accused was placed at the scene of the crime and not any other person. The accused's claim that he never saw the blood on the victim's thighs and his silence about the conversations that 10 happened at his home and the fact that the victim was taken there, shows a dishonest character. If the wife and everyone else who went to the accused's home saw blood on the victim's thighs, I do not think the accused was too blind to see it. The totality of the evidence irresistibly point to the accused as the person who sexually assaulted A. M. He accepts 15 no other person was near the scene but himself. I have ruled out the predatory role of a third party. To my mind the prosecution has been able to prove the participation of the accused in the act of aggravated defilement of A. M beyond reasonable doubt. The victim's account to PW3 and auntie Akello have been well corroborated. This is a rule of practice. The law is 20 that a conviction on uncorroborated evidence may be had in sexual offences if the court is satisfied that there is truth in the evidence and duly warns itself and the assessors of the dangers of convicting on the - uncorroborated evidence of the complainant. See: *Republic Vs. Cherop A Kinei & another [1936] 3 EACA 124; Chila Vs. Republic [1967] EA 722 at p.* - 25 *723 (CA); Kibale Ishma Vs. Uganda, Crim. App. No. 21 of 1998 (SCU); Livingstone Sewanyana Vs. Uganda, Crim. Appeal No. 19 of 2006 (SCU).*


5 Corroboration affects the accused by connecting him or tending to connect him with the crime confirming in some material particular not only the evidence that the crime was committed but also that the accused committed it. See: *Republic Vs. Ishwerlal Purolin [1942] 9 EACA 58, at 61; Mutonyi Vs. Republic [1982] KLR 203.*

I find corroboration in this case and there is no need for the usual warning but if one were required, I warn myself and the assessors accordingly. In agreement with the assessors, I find the accused person-Okello Bony alias Akoc guilty of aggravated defilement contrary to section 116 (3) (4) (a) of

15 the PCA Cap 128 and I convict him accordingly.

Dated, signed and delivered at Apac this 07th April, 2025

George Okello 20 JUDGE

## **Judgment read in Court**

10: 00 AM 07th April, 2025

## **Attendance**

25 Accused person in Court Mr. Owor Lewis, on State Attorney, for the Prosecution Ms. Nakibira Brenda, Defence counsel on State Brief Assessors in court Ms. Sophia Akello, Court Clerk/ Lango Language Interpreter 30

George Okello

JUDGE

## **SENTENCING, THE SENTENCE AND THE 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

- 10 Lewis submitted that the offence is rampant and there is public outcry. He added that the victim was only six years old while the convict was 35 years old thus the age difference of 29 years at the time of the offence. He contended that the convict was old enough to be the victim's father and ought to have protected her but decided to sexually abuse her. That the - 15 crime left physical and psychological damage on the victim. The learned state counsel proposed 28 years' prison term. He cited *Masaba Francis Vs. Uganda, CACA No. 182/2012* where the sentence of 25 years' imprisonment handed by the trial court for aggravated defilement where the victim was 09 years old was upheld by the Court of Appeal.

In mitigation, Ms. Nakibira Brenda argued that the convict is remorseful and is a first offender. That he seeks for forgiveness from the victim, her family and all Ugandans. She submitted that the convict has no previous criminal record and is now 38 years old and capable of reforming. Learned 25 counsel added that the convict was a breadwinner for the family caring for three children and two wives. Learned Counsel proposed 15 years'

imprisonment for the offence.

5 In further mitigation, the convict stated that it is his first time to appear in court. He said he was taking care of two wives and six children (not three as submitted by his counsel). He added that he has an 80-year-old grand-mother who is blind. He prayed for leniency and proposed 08 years' imprisonment.

Prison Warder II Mr. Ongom James informed court that the convict has spent 03 years, 02 months and 05 days on remand.

The maximum punishment for aggravated defilement under section 116 15 (3) of the PCA Cap 128 is death sentence. However, under 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 within the category of the "rarest of the rare" Here neither the death penalty nor imprisonment for the natural life of the convict which is 20 the second heaviest punishment, was proposed. Fixed prison terms have been proposed and counter proposed by either side. The sentencing range for aggravated defilement provided for in part 1 to 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 25 while considering the sentencing conventions in cases bearing similar resemblance though not precedents. Past cases do, however, afford material for consideration. See: *Ogalo s/o Owoura Vs. R (1954) 21 EACA*


5 *270*; *Livingstone Kakooza Vs. Uganda, SC Crim. Appeal No. 17 of 1993*; *Ninsiima Gilbert Vs. Uganda, C. A Crim. Appeal No. 180 of 2010*.

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

- 10 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 imposed on the convict and substituted 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 - 15 sentence of 14 years' imprisonment for aggravated 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 - 20 an 8-year-old girl was upheld by the Court of Appeal. I have noted the most recent trends where the court of appeal has imposed higher sentences for cases of similar nature as the instant. 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 - 25 where the appellant had defiled a 9-year-old girl. The court cited three cases where sentences ranging from 30 years to 40 years for aggravated defilement have been upheld by the court.

In the present case, the victim was quite young and the convict 29 years older and fit to be the victim's father. As a parent of six children and two wives, the convict ought to have behaved more responsibly. He had two wives to quench his sexual thirst but he decided to help himself on a 10 vulnerable defenseless child who was alone in the cassava garden trying to harvest cassava tuber by herself. The convict behaved like an animal towards the toddler. The victim was severely injured in the vagina and had to be stitched twice. She also bled profusely from the vagina. These aggravate the punishment. I would thus find the prison terms counter 15 proposed by the defence counsel and the convict in further mitigation to be quite disproportionately low. I reject them. However, given the mitigating factors presented which I have considered especially the fact that the convict is a first offender, appears remorseful, and is a family man with burdens, and capable of reforming, I would discount the 28 years' 20 imprisonment proposed by Mr. Owor. I would accordingly find 20 years' imprisonment an appropriate punishment. But taking into account the 03 years, 02 months and 05 days spent on remand which I deduct from the 20 years, I now sentence you Okello Bonny alias Akoc to 16 years 09 months and 25 days' imprisonment for aggravated defilement contrary to 25 section 116 (3) (4) (a) of the Penal Code Act Cap 128 starting from 07th April, 2025 the date of conviction.

- 5 The convict Okello Bonny alias Akoc is advised of the right of appeal to the Court of Appeal of Uganda at Kampala against both the conviction and sentence within 14 days from today 10th April, 2025 being the date of the sentencing, if dissatisfied. - 10 Dated at Apac this 10th April, 2025

George Okello 15 JUDGE