Uganda v Tugumisirize Justus (Criminal Session 65 of 2023) [2025] UGHC 340 (19 February 2025)

## 5 **THE REPUBLIC OF UGANDA IN THE HIGH COURT OF UGANDA HOLDEN AT KABALE HCT - 11 - CRIMINAL SESSION NO. 0065 OF 2023 (Arising from Kisoro Criminal Case No. 0011 of 2023) (Arising from Kisoro CRB 227 of 2023)** 10 **UGANDA** ::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::**PROSECUTION VERSUS**

## 15 **TUGUMISIRIZE JUSTUS**:::::::::::::::::::::::::::::::::::::::::::::::::**ACCUSED**

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

## **JUDGMENT**

Tugumisirize Justus who for the rest of my Judgment I shall refer as the Accused was indicted for the offence of **Aggravated Defilement** contrary to **Section 129(3)** and **4 (c)** of the **Penal Code Act**. The particulars giving rise to the indictment are that Tugumizirize Justus on the 23/03/2023 at Musezero Village,

25 Nyundo Parish, Nyundo Sub County in Kisoro District performed a sexual act with KD his biological daughter aged fourteen (14) years.

The Accused pleaded not guilty.

The Victim will be referred to as KD in this Judgment.

30 **Representation**.

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

5 During the preliminary hearing pursuant to **Section 67** of the **Trial 0n Indictment Act** the Prosecution and defence agreed to the admission of the Victim's immunisation card that was received as Exhibit P1.

**The Burden and Standard of Proof.**

- 10 This being a criminal trial it is one in which the prosecution has the onus to prove its case beyond reasonable doubt. The burden does not shift to the Accused person and the Accused must only be convicted on the strength of the Prosecution case and not on the weakness of the defence case. - 15 **See: Ssekitoleko versus Uganda [1961] EA 531.**

**Ingredients of the offence.**

For the Accused to be convicted of Aggravated Defilement the Prosecution must

- 20 prove the following ingredients beyond reasonable doubt. - **1) That the Victim was below the age of 18 years at the time of commission of the offence.** - **2) That the Accused is a parent to the Victim.** - **3) That a sexual act was performed on the Victim.** - 25 **4) That it is the Accused who performed the sexual act on the Victim.** - **a) Age.**

The most reliable way of proving the age of a child is by production of a birth certificate followed by the testimony of the parents and medical evidence where 30 available.

5 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.

**See; Uganda versus Kagoro Godfrey HCCS No. 0014 of 2002**.

In this case the Victim KD (pw1) testified that she is 16 years. This was 10 corroborated by her mother Agnes (PW2) who also testified that KD is aged 16 years. This is further corroborated by her immunisation card in Exhibit P1 that indicates her date of birth as being 27/11/2008.

This would mean that on the 23/03/2023 when this offence is alleged to have been committed the Victim KD was aged 14 years. The Accused who is the

15 biological father of the Victim KD did not contest her age as being 14 years as of the 23/03/2023 Exhibit P2 the medical examination of KD also places her below the age of 18 years basing on her dentition.

It is my finding that the Prosecution has proved beyond reasonable doubt that the Victim in this case was a girl below the age of 18 years at the time of commission

20 of this offence.

**b) That the Accused is a parent to the Victim.**

It is the evidence of the Victim in this case KD (PW1) that the Accused is her biological father and that he is called Tugumisirize Justus. This evidence is

25 corroborated by that of Nuwomugabe Agnes (PW2) the mother of KD who testified that the Accused is her husband and together they have 4 children including KD who is their 2nd born daughter. The Accused in his defence did admit that KD was his daughter and that Nuwomugabe Agnes (PW2) was her mother. It is therefore an admitted fact that the Accused is the father of the Victim KD.

5 This ingredient has therefore been proved beyond reasonable doubt

**c) That a sexual act was performed on the Victim.**

- 10 **Section 129(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. Proof of penetration is normally established by the Victim's evidence medical evidence and any other cogent evidence. - 15 The slightest penetration is enough to prove the ingredient.

**See Remigious Kiwanuka versus Uganda SCCA No. 0014 of 1995.**

In the instant case the Victim KD (PW1) testified that on the night of the

20 23/03/2023 she was sleeping facing upwards when she felt the Accused on top of her having sexual intercourse with her and that she felt pain in her vagina and kicked out at him and he ran out of the house.

It is also her evidence that the Accused had twice before the 23/03/2023 engaged

in sexual intercourse with her. This evidence is corroborated by that of her

- 25 mother Nuwomugabe Agnes (PW2) who testified that on the night in issue KD came to the vigil where she was and she was crying and told her that she had been defiled. This evidence is corroborated by Dr. Rukundo Benon (Pw3) a senior medical officer at Kisoro Hospital who testified that he examined the Victim on the 27/03/2023 which was 3 days after the alleged sexual act and his examination - 30 revealed that the Victim's hymen had been raptured and there was no fresh evidence of penetration and that this could have been due to the history of frequent defilement.

5 According to the witness CPW3) the Victim KD would frequently break down and cry during the medical examination. The medical report was received as Exhibit P2.

The Victim in this case appeared to be truthful that she woke up to find that she was being engaged in sexual intercourse and that she felt pain in her vagina. The

10 testimony of her mother PW2 that the Victim KD went to her crying that she had been defiled that very night with in a matter of minutes after the incident is strong corroborative evidence.

Furthermore, the admission of KD (PW1) that she had been engaged in sexual intercourse twice before the night of 23/03/2023 coupled by the fact that the

15 medical examination was carried out 4 days later explains the reason why the medical expert (PW3) did not find signs of a fresh rapture of the hymen and he alluded to the same in his testimony and medical report in Exhibit P2. I find the mood of the Victim in frequently breaking down during the medical

examination to further corroborate her testimony.

20 I therefore find sufficient corroborative evidence that a sexual act was performed on the Victim KD and this has been proved beyond reasonable doubt by the Prosecution.

a) **Participation of the Accused**.

25 It is the evidence of the Victim KD that in the night of the 23/03/2023 at around 9:00PM she was reading her books when the Accused her father came to charge his phone. It is the testimony of KD that the Accused told her not to close the door because he would lock the house and go with the keys then later return with her mother who was not around. KD states that she then heard the Accused lock the

- 5 door from outside and that he had moved out with the keys. Later according to KD she woke up and the Accused was on top of her having sexual intercourse with her and that she kicked out at him and he ran out of the house. KD was emphatic that it was the Accused who had sexual intercourse with her on the night in issue although she could not recall if the solar light was on or not at the time of the - 10 incident. It is also her evidence that the Accused had twice prior engaged in sexual intercourse with her and her sister KP. KD testifies that she then went to the vigil where she found her mother (PW2) and narrated to her what the Accused had done to her and as they went back home they met the Accused who when questioned by her mother (PW2) responded in a harsh voice that her mother 15 should check her and that when they got back home they found that the padlock

had not been cut.

Her evidence is corroborated by that of her mother Nuwomugabe Agnes (PW2) who testified that on the 23/03/2023 while at the vigil KD came and informed

- 20 her that she had been defiled and she was crying. According to Nuwomugabe (PW2) KD did not at the time tell her who had defiled her but that they ran back home and as they reached the compound KD told her that mother there is the person who defiled me and that when she flashed her torch it was the Accused. According to Nuwomugabe (PW2) she asked the Accused if what the child had - 25 said was true that she had been defiled and that the Accused responded saying are you saying that it is me? To which KD replied saying "*father isn't it you who has defiled me because you told me you would lock the padlock and return with mother, who else would have opened and defiled me?".*

- 5 It is the testimony of PW2 that the practice at their home is that the last person usually locks the house and the behind door is locked from inside with a bolt while the front door is locked with a padlock from outside. That the children inside the house would leave the house through the back door when the front is locked and that this was the door that KD used. - 10

The Prosecution also presented a sister to KD who I shall refer to as KP and is presently 17 years. It is the evidence of KP that her father the Accused began to engage in sexual intercourse with her when she was only 12 years old and that KD also narrated to her that the Accused has engaged her in sex as well. According

15 to KP the entire public is aware that the Accused is having sexual intercourse with them.

The Accused on the other hand in his sworn defence denies the indictment and it is his defence that he and the Victim's mother Agnes (PW2) have grudges caused by land wrangles and that she is the one who convinced his daughters KD(PW1)

- 20 and KP (PW3) to say that he was having sexual intercourse with them. According to the Accused on the 23/03/2023 he left for the vigil at around 9:00PM leaving his wife (PW2) at home and returned between 5:30AM and 6:00AM and this is when his wife accused him of defiling his daughter. His evidence was corroborated by that of his brother Tushabe John (DW2) who testified that on the - 25 night in issue he was at the vigil with the Accused and that the Accused and his wife have land wrangles that gave rise to the allegations against the Accused. It is trite law that where an Accused person raises the defence of alibi the onus is on the Prosecution to discredit this defence and to place the Accused at the scene of crime.

5 **See Kyalimpa Edward versus Uganda SCCA No. 0010 of 1995.**

The evidence of KD was given in a very calm and collected manner. Her demeanour appeared to me to be truthful. I did not detect any deceit in her body language. Her evidence did not appear to be propelled by malice or any ill will. The Accused made allegations of differences that he had with wife Nuwomugabe

10 (PW2) but did not infer a personal grudge with his daughter KD I reject his notion that she was convinced by her mother to testify against him. The evidence of KP goes to show pattern that the Accused appears to be preying on his daughters in the absence of his wife to satisfy his sexual lusts. This in itself this Court must take caution does not mean that on the night in issue it was the Accused who did 15 perform a sexual act with the Victim in this case.

The evidence presented by the Prosecution in this case is circumstantial evidence. However, as the Courts have held before it is no derogation of evidence to refer to it as being circumstantial, caution however must be taken in the analysis of

20 this evidence as guided by the supreme Court in **Byaruhanda versus Uganda [2004] UG SC 24** as follows;

*"It is trite law that where the prosecution case depends solely on circumstantial evidence, the Court must before deciding on conviction find that the exculpatory facts are incompatible with the innocence of the Accused and incapable of*

25 *explanation upon any other reasonable hypothesis than that of guilt. The Court must be sure that there are no other co-existing circumstances which weaken or destroy the inference of guilt"*

5 Furthermore, in **Mugambe Francis versus Uganda Criminal Appeal No. 0060 of 2011** the Court of Appeal in regard to circumstantial evidence held that the facts must be closely knitted and must carry conviction to the mind of the Judge.

I accept the evidence of KD (PW1) that the Accused locked the door from the 10 outside and that she heard him do so as he exited the house and this with a padlock.

It would therefore mean that the only person with the access into the house using a key was the Accused since only a single key was available. The only way that one could exit while inside the house was through the back door that was bolted

15 from inside the house.

The evidence on record clearly shows that the padlock to the front door was not in any way tampered with and both KD and Nuwomugabe (PW2) testified that it was the Accused who opened this padlock after the incident. I find no other explanation other than that it was the Accused who prior accessed the house to 20 perform a sexual act with his daughter KD because he had the time, the opportunity to do so and the means to access the house. I am persuaded that the Accused in asking KD not to lock the house from inside was so that he could later creep into the house unannounced to carry out his evil deed. Further proof that it was the Accused who accessed the house is that when KD (PW1) ran to inform 25 her mother (PW2) that she had been defiled the two of them immediately returned from the vigil only to meet the Accused coming from the direction of their house and according to KD the demeanour of her father was of someone who wanted to quarrel. The question that begs an answer is where was the 5 Accused coming from? I am persuaded that the Accused was coming from the house because he was the one who performed a sexual act on KD.

There is no other explanation as to why the Accused was coming from the opposite direction of the vigil which was the direction of their home. In fact, Nuwomugabe (PW2) states that they met him at the compound of their home.

10 I do not accept the evidence of the Accused and that of his witness in DW2 that the charge against the Accused is fabricated arising from family wrangles. The wrangles made reference to were in relation to land and they had since been resolved.

There literally no more disputes over the same.

- 15 I also reject the defence of alibi that the Accused spent the entire night at the vigil. This is not true. The evidence presented by the Prosecution has discredited this defence and placed the Accused at the scene of crime. - 20 After considering the evidence adduced by the Prosecution and the defence together 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(3)** and **4(a)** of the **Penal Code Act** and convict him accordingly of the same. - 25 Before me,

………………………………………. **Samuel Emok0r Judge** 30 **19/02/2025**