Uganda v Oriokot (Criminal Session 182 of 2021) [2025] UGHC 179 (14 April 2025)

#### **THE REPUBLIC OF UGANDA**

## **IN THE HIGH COURT OF UGANDA AT SOROTI HOLDEN AT KATAKWI**

# **CRIMINAL SESSIONS CASE NO. 0182 OF 2021**

**UGANDA :::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::: PROSECUTOR**

#### **VERSUS**

## **ORIOKOT JOSEPH ::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::: ACCUSED**

## **BEFORE: HON. LADY JUSTICE CELIA NAGAWA**

## **RULING ON A PRIMA FACIE CASE**

- 1.0. Oriokot Joseph, herein after referred to as the accused is indicted with the offence of Aggravated defilement contrary to Section 129 (3) and (4) (d) of the Penal Code Act Cap. 120 then and now Section 116 (3) and 4 (d) of the Penal Code Act, Cap. 128. - 1.1. It is alleged that on the 23rd day of January, 2020 at Arubelela Village in Kapelebyong District, the accused performed a sexual act with Acen Jeniffer, a girl aged 7 years old. The accused pleaded not guilty to the charges on the indictment. By his plea of not guilty, the accused person put in issue each essential ingredient of the offence of aggravated defilement with which he is charged and the prosecution has the burden to prove those ingredients. - 1.2. This Court has, however, observed that while the accused could have been rightly charged with the offence of aggravated defilement under Section 129 (3) of the Penal Code Act, Cap. 120, now Section 116 (3) of the Penal Code Act, Cap. 128, the Director of Public Prosecutions for some unknown reason categorized the nature of aggravated defilement in respect to the matter at hand under Section 129 (4) (d), now Section 116 (4) (d) of the Penal Code Act, Cap. 128 where the victim of the offence is a person with a disability, an element that is clearly absent in the present case, as the victim presented to this Honorable Court does not have a disability nor did she have any previously.


- 1.3. For clarity, Section 116 (4) of the Penal Code Act, Cap. 128 outlines the circumstances under which defilement is considered aggravated as follows; - (a) where the person against whom the offence is committed is below the age of fourteen years; - (b) where the offender is infected with Human Immunodeficiency Virus (HIV) - (c) where the offender is a parent or guardian of or a person in authority over, the person against whom the offence is committed; - (d) where the victim of the offence is a person with a disability; or - (e) where the offender is a serial offender. - 1.4. Basing on the Indictment, the Summary of the Case, the testimonies in court and my own observation of the victim when she was brought to court, it is clear that the victim is not a person with a disability. Therefore, the applicable provisions should instead have been Section 116 (3) and Section 116 (4) (a) and (c) of the Penal Code Act, Cap. 128, which relate to circumstances where the victim is below fourteen years of age and where the offender is a parent or guardian of or a person in authority over the victim as the accused is said to be an uncle to the victim. - 2.0. **Article 126 (2) (e) of the Constitution of the Republic of Uganda** enjoins courts, in adjudicating both civil and criminal matters, to administer substantive justice without undue regard to technicalities. This principle has been reaffirmed in various judicial decisions, which have consistently held that the erroneous citation or omission of a legal provision under which a party seeks redress is a technicality that should not obstruct the course of justice. - 2.1. To this end, this Honorable Court finds it necessary to caution the Office Directorate of Public Prosecutions and the learned Counsel on State Brief to be extremely careful and exercise greater diligence in handling criminal matters. Particular care must be taken in framing charges and in citing the applicable provisions of the law under which an accused is charged. The practice of relying on precedent templates without careful scrutiny should be discouraged for this could lead to anything that might even result into injustice to the society but clearly created by prosecution, yet they are supposed to legally protect the


victims. In the present case, the offence of aggravated defilement, the particulars of the offence and the summary of the case are proper save for one of the provisions of the law under which the accused is charged. Such avoidable errors can risk creating unnecessary grounds of appeal, thereby subjecting both the accused and the victim to prolonged distress.

- **2.1.1.** With that said, and in light of Article 126 (2) (e) of the Constitution of the Republic of Uganda, this Court will proceed to make its ruling on whether a prima facie case has been established, since the offence with which the accused is charged is proper, notwithstanding the erroneous citation of the applicable legal provision by the prosecution, as no miscarriage of justice shall be occasioned to the accused. - 2.1.2. In a bid to prove its case against the accused, the following evidence was admitted during the preliminary hearing; Medical Form PF3A marked PE1 in respect of the victim which noted that the victim's hymen was raptured. It was also indicated that victim had a cut wound at the Labia Minora and a bruise at the Labia majora. The victim was also stated to be less than 18 years of age basing on her dental formula. PF24A marked PE2 in respect of the accused which noted that the accused's mental status was normal and that he is an adult of the apparent age of 32 based on his dental formula. The Baptism card of the child/victim marked PE3 which indicated the victim's date of birth as 2nd August, 2013. The sketch plan of the scene of crime marked PE4. PF19, the exhibit record marked PE5 which noted that the complainant brought in a sky blue t-shirt, a light grey short and squared black with brown, red and blue skirt. - 2.1.3. The prosecution called four witnesses to wit; PW1, Julius Okiror, the biological father to the victim, PW2, Alupo Christine, the step mother to the victim, PW3, Acen Jeniffer, the victim and PW4, Engaru Brian, the brother to the victim. - 2.1.4. At the close of the prosecution case, *section 74 of The Trial on Indictments Act, Cap. 25* requires this court to determine whether or not the evidence adduced has established a prima facie case against the accused. It is only if a prima facie case has been made out against the accused that he should be put


to his defence *(see section 74 (2) of The Trial on Indictments Act).* Where at the close of the prosecution case a prima facie case has not been made out, the accused would be entitled to an acquittal *(See Wabiro alias Musa v. R [1960] E. A. 184 and Kadiri Kyanju and Others v. Uganda [1974] HCB 215).*

- 2.2. A prima facie case is established when the evidence adduced is such that a reasonable tribunal, properly directing its mind on the law and evidence, could convict the accused person if no evidence or explanation was set up by the defence *(See Rananlal T. Bhatt v. R. [1957] EA 332).* The evidence adduced at this stage, should be sufficient to require the accused to offer an explanation, lest he runs the risk of being convicted. It is the reason why in the above cited case it was decided by the Eastern Africa Court of Appeal that a prima facie case could not be established by a mere scintilla of evidence or by any amount of worthless, discredited prosecution evidence. - 2.2.1. There are mainly two considerations justifying a finding that there is no *prima facie* case made out as stated in the Practice Note of Lord Parker which was published and reported in *[1962] ALL E. R 448* and also applied in *Uganda v. Alfred Ateu [1974] HCB 179***,** as follows:- - When there has been no evidence to prove an essential ingredient in the alleged offence, or - When the evidence adduced by prosecution has been so discredited as a result of cross examination, or is manifestly unreliable that no reasonable court could safely convict on it. - 2.2.2. Both defence, Learned Counsel Tomusange Joel and Prosecution state Attorney Tumwine Wills chose not to make any submissions on the question as to whether or not evidence establishes a prima facie case against any of the accused. - 2.2.3. I am required at this stage to determine whether the prosecution has led sufficient evidence capable of proving each of the ingredients of the offence of aggravated defilement, if the accused chose not to say anything in his defence and whether such evidence has not been discredited as a result of cross-


examination or is manifestly unreliable that no reasonable court could safely convict on it. It is important to note that for the accused person to be put on defence, court must be ready to convict if he offers no explanation on the credible, admissible and high quality evidence in support of each ingredient of the offence but not to shift the burden of proof to the accused as any conviction must be based on the strength of the prosecution case but not on the weakness of the defence case. For the accused to be required to defend himself, the prosecution must have adduced evidence of such a quality or standard on each of the following essential ingredients;

- a) That the victim was below 14 years of age. - b) That a sexual act was performed on the victim. - c) That the accused is a parent or guardian of or a person in authority over the victim. - d) That it is the accused who performed the sexual act on the victim.

# **3.0. Determination of the evidence on each of the essential elements of aggravated defilement**

# **3.1. First, the prosecution is required to prove beyond reasonable doubt that the victim was below 14 years of age.**

- *3.1.1. Section 116 (3) Penal Code Act* is to the effect that any person who performs a sexual act with another person who is below the age of eighteen years in any of the circumstances specified in subsection (4) commits a felony called aggravated defilement. *Section 116 (4) of the Penal Code Act* provides for the circumstances referred to in *subsection (3),* - a) where the person against whom the offence is committed is below the age of fourteen years; - 3.2. The most reliable way of proving the age of a child is by the production of her birth certificate, followed by the testimony of the parents. It has however been held that other ways of proving the age of a child can be equally conclusive such


as the court's own observation and common-sense assessment of the age of the child. *(See Uganda v. Kagoro Godfrey H. C. Crim. Session Case No. 141 of 2002).*

- 3.3. In the instant case, the indictment states that the victim was 7 years old at the time of the alleged offence. During the hearing, the victim (PW3) testified that she is currently 12 years old. However, according to PE3, the victim's baptism card, which was agreed upon by both parties in the memorandum of agreed facts the victim's date of birth is indicated as 2nd August, 2013. This implies that at the time the offence was allegedly committed on 23rd January, 2020, the victim was 6 years old, not 7 years as stated in the indictment and that she is currently 11 years old, not 12 years as she stated in her testimony. - 3.4. The defence did not raise any objection regarding the victim's age at any stage of the proceedings. It is also the position of the law that what the prosecution is required to prove beyond reasonable doubt is that the victim was below the age of fourteen years at the time of the offence. Therefore, whether the indictment stated that she was 7 years old instead of 6 years, or whether PW3 claimed to be 12 years instead of 11 years, the material fact remains that the victim was clearly below the age of 14 years when the alleged offence was committed. - 3.5. This Court also had the opportunity to see, observe, and interact with the victim (PW3) during the *voire dire*. From the observations made during that interaction, the victim appeared to be below the age of fourteen years. - 3.6. This court therefore satisfied that the victim was below the age of 14 years at the time the alleged offence was committed. I find that this element has been proved beyond reasonable doubt. - **4.0. The second ingredient requires proof that a sexual act was performed on the victim.**

 - 4.1. One of the definitions of a sexual act under *Section 116 (7) of the Penal Code Act*, *Cap. 128* is penetration of the vagina, mouth or anus, however slight, of any person by a sexual organ. This ingredient is ordinarily proved by the direct evidence of the victim, but may also be proved by circumstantial and medical evidence. *(See Remigious Kiwanuka v. Uganda; S. C. Crim. Appeal No. 41 of 1995).* Whereas this is basic standard, in the case of *Hussein Bassita v Uganda S. C. Criminal Appeal No.35 of 1995* Court observed that; "though desirable, it is not a hard and fast rule that the victim's evidence and medical evidence must always be adduced in every case of defilement to prove sexual intercourse or penetration. Whatever evidence the prosecution may wish to adduce to prove its case, such evidence must be such that it is sufficient to prove the case beyond reasonable doubt." - 4.2. In the present case, PF3A-PE1 which was agreed upon by both parties in the memorandum of agreed facts states that the victim had a raptured hymen, a cut wound at the Labia Minora and a bruise at the Labia Majora and that the probable cause was a penetrative object (sharp object). - 4.3. PW3, the victim, gave an unsworn statement after a *voire dire* was conducted and the Court had ascertained her ability to understand and respond to questions meaningfully. PW3 refused to take oath. In her statement, PW3 stated that she knew the accused and was in court because he had had sexual intercourse with her on several occasions. She described how the accused would take her to a cassava garden, undress her, insert his penis into her private parts, cover her mouth, and then clean her with leaves afterwards. She also testified that he would give her pumpkins, oranges, and maize in return. Although PW3 did not testify under oath and was therefore not subjected to cross-examination, her account was detailed and consistent. - 4.4. PW4, the victim's 15 year old brother, testified under oath and stated that on the morning of 23rd January, 2020, the accused came to their home at 8:00 a.m. with oranges and asked for the victim, who was at school. At around, 6:00


p.m., when the victim returned home, PW4 accompanied the victim on a bicycle to the home of the accused. As they were approaching the accused's house, there was a house under construction of one Mr. Ebulu, the victim saw the accused, got off the bicycle and went to see the accused. PW4 packed the bicycle and entered inside Mr. Ebulu's unfinished house to check out the rooms and admire the progress ongoing construction. As PW4 was looking at the rooms, he saw the victim and the accused going towards a cassava plantation. He followed them discreetly and when he saw the accused, he decided to squat in the cassava plantation and saw the accused lay the victim down, remove her knicker, and cover her mouth. The accused's trousers were lowered to his knees, and PW4 saw the accused defile the victim. When he tried to flee he accidentally stepped on a cassava stem which broke and made noise, alerting the accused who then saw him. That when he ran to pick his bicycle, the accused followed him and wanted to move ahead of him. The accused offered him Ugx. 2,000/-. PW4 refused the money, fled the scene, went home and reported what had transpired to his stepmother. Shortly thereafter, the victim also came home running and confirmed what had happened to her to their step mother.

- 4.5. PW4 also recounted that the victim told their stepmother that the accused had cleaned her with leaves, and that such incidents with the accused had happened several times. That even when their biological mother was still around, the accused had severally engaged the victim in similar acts, and that the victim would be pressured by their biological mother to accompany the accused to collect food and fruit. - 4.6. During cross-examination, PW4 confirmed that he had no grudge against the accused. He stated that the incident occurred at around 6:00 p.m. when the sun was setting and there was still enough daylight for him to see the accused whom he said was dressed in a grey shirt and a black trouser. PW4 admitted that he had not witnessed the previous incidents described by the victim, but


reaffirmed the details of the incident he witnessed. He estimated the distance between his hiding point in the cassava plantation and the scene of the defilement to be approximately 15 meters and explained how the cassava plantation called "Nigeria", though long, did not obstruct his view as he was squatting and able to see the accused defile the victim from the bottom of the cassava.

- 4.7. In re-examination, PW4 elaborated that the accused regularly came to their home with biscuits, he would greet their mother and request the victim to accompany him to go and pick pumpkins and oranges from his home. This the victim always abided. - 4.8. This court is also satisfied that the prosecution has proved beyond reasonable doubt that a sexual act was performed on the victim as stated in the indictment.

## **5.0. The third ingredient requires proof that the accused is a person in authority over the victim.**

- 5.1. The Penal Code Act does not expressly define the terms *"parent," "guardian,"* or *"person in authority"* in the context of aggravated defilement or related offences. However, the phrase *"person in authority"* may be interpreted to encompass individuals who hold a position of trust, influence, or control over the child, whether formally or informally. The person must have relational power and influence over the victim, which may facilitate the commission of the offence through manipulation, coercion, or exploitation of trust. - 5.2. In the case of **Uganda Vs. Sunday Herbert HCT-01-CR-SC-162/2021**, Justice Vincent Wagona, cited the case of **Uganda versus Kayinamura Andrew**, High Court Kabale Criminal Session Case No.0238 of 2019 in which Hon. Justice Moses Kazibwe Kawumi held that: "My appreciation of the term "a person in authority" in the context of Section 129 is that it refers to the relational power between a family elder and a younger relative. The accused may not have for long interacted with the victim as he contends, but as a grandfather who used


to visit their home and who was respected as such, he wielded authority over his granddaughter." He also cited the case of Uganda Versus Fualwak [2018] UGHCRD 110 where Hon Justice Mubiru Stephen described the *"authority" to reside in: "any person acting in loco parentis to the victim, or any person responsible for the education, supervision or welfare of the child, and persons in a fiduciary relationship with the child characterized by a one sided distribution of power inherent in the relationship, in which there is a special confidence reposed in one who in equity and good conscience is bound to act in good faith with regard to the interests of the child reposing the confidence."* I agree.

- 5.3. PW1, the biological father of the victim stated his former wife is a niece to the accused. That the accused used to go to their home since he was an uncle and would leave with the victim and return her with oranges, maize and ground nuts. - 5.4. PW2, also testified that the accused had been defiling the victim even when the biological mother was still alive because the mother was related to the accused. - 5.5. This court is also therefore satisfied that the prosecution has proved beyond reasonable doubt that the accused is a person in authority over the victim. - **6.0. The last ingredient requires proof that the accused person was responsible for the sexual intercourse**. - 6.1. This ingredient is satisfied by adducing evidence, direct or circumstantial, placing the accused person at the scene of crime in view of the authorities of *Badru Mwidu vs Uganda (1994 – 1995) HCB 11* and *Bassitta Hussein vs Uganda S. C. C. A No. 35 of 1999.* In cases of visual identification by a single identifying witness, the question to be determined is whether as a single identifying witness he/she was able to recognize the accused. In circumstances of this nature, the court is required to first warn itself of the likely dangers of


acting on such evidence and only do so after being satisfied that correct identification was made which is free of error or mistake (see *Abdalla Bin Wendo v. R (1953) 20 EACA 106*; *Roria v. R [1967] EA 583* and *Abdalla Nabulere and two others v. Uganda [1975] HCB 77*). In doing so, the court considers; whether the witness was familiar with the accused, whether there was light to aid visual identification, the length of time taken by the witness to observe and identify the accused and the proximity of the witness to the accused at the time of observing the accused.

- 6.2. PW3, the victim, in her unsworn testimony stated that she knows the accused, whom she identified by name as Oriokot. She pointed at him in court and unequivocally stated that he is the person who had sexual intercourse with her on multiple occasions. - 6.3. PW4, the victim's brother, similarly identified the accused by name and in court. He testified that the accused was their neighbor and that he had known him even prior to the incident of 23rd January, 2020. He recounted that the accused would frequently visit their home bearing gifts such as biscuits, and would engage their mother before requesting the victim to accompany him to collect pumpkins and oranges. - 6.4. On the date of the alleged incident, PW4 stated that he saw the accused and the victim walking toward a cassava plantation. He followed them discreetly, squatted down in the cassava plantation and saw the accused lay the victim down, remove her knicker, and cover her mouth. He stated that the accused's trousers were lowered to his knees and that he witnessed the accused defiling the victim. Upon being spotted by the accused, PW4 fled the scene, but was pursued by the accused who attempted to offer him UGX 2,000/= to dissuade him from reporting the incident. - 6.5. During cross-examination, PW4 confirmed that the incident occurred at around 6:00 p.m., the sun was setting and there was still sufficient light for him to see


clearly. He stated that although the cassava in the plantation was long, he could still observe the events clearly from his hiding position, which he described as approximately 15 meters away from where the offence was being committed.

- 6.6. PW2, the stepmother of the victim, corroborated the testimonies of PW3 and PW4. She testified that she knew the accused as a resident of the same village. She recounted what PW4 told her upon returning home that he had seen the accused take the victim to the cassava garden where he defiled her. She further stated that the victim herself confirmed what had transpired and also disclosed that the accused had defiled her on multiple occasions, including when her biological mother was still around. - 6.8. The evidence of PW3, PW4, and PW2 is mutually reinforcing and clearly places the accused as the person who defiled the victim. Their testimonies are consistent, detailed, and credible, and the identification of the accused was made under favorable conditions, leaving no doubt as to his identity as the perpetrator. - 7.0. Consequently, I find that the prosecution has succeeded in establishing a prima facie against the accused person and he should accordingly be put on his defense.

## **Dated at Katakwi this 14th day of April, 2025**