THE REPUBLIC OF UGANDA

IN THE HIGH COURT OF UGANDA AT MPIGI

CRIMINAL SESSION NO. 41 OF 2018

UGANDA::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::: PROSECUTOR

VERSUS

KAYEMBA RONALD::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::: ACCUSED

BEFORE: HON. JUSTICE EMMANUEL BAGUMA

JUDGMENT.

1. Kayemba Ronald who was at the time of arrest aged 28 years, a peasant farmer and businessman and a resident of Kabulasoke “B” in Gomba District is indicted for the offence RAPE contrary to Section 123 and 124 of the Penal Code Act.
2. The state alleged that on the 16^th day of April, 2016 at Kabulasoke “B” village Butiti Parish, Kabulasoke Sub County in the District of Gomba, Kayemba Ronald had unlawful sexual intercourse with Nantongo Jiraida without her consent.
3. On arraignment before Court for plea, the accused denied the charges and a plea of not guilty was recorded against him.  It then became the burden of the prosecution to prove all the allegations beyond reasonable doubt. And if any doubt arose in the state case the same ought to be resolved in the favour of the accused person.
4. The cardinal principals of our criminal justice system is that a person is to be presumed innocent till proven guilty or pleads guilty on his or her own will. See Article 28 (3) of the Constitution of Uganda and  R Vs Sims (1946), Kb 5 Oketh Okale Vs R (1965) EA 555 Woolmington Vs D.P.P (1935) Ac 46
5. The offence of Rape with which the accused person is charged with has the following ingredients;

1. Unlawful sexual intercourse
2. Of a woman of 18 and above 18 years
3. Without her consent
4. By the accused

1. The state called three prosecution witnesses being Nantongo Jiraida PW1 (sworn through her interpreter Piascceda Nabuma), Dominico Murunagoma PW2 and Namiyingo Joweria PW3. The state also tendered in court Police Form 3A on which the victim was examined by Nambooze Grace a Nursing officer on 16/4/2016 on the same day the said event is said to have occurred.
2. Whether There Was Unlawful Sexual Intercourse

The state was able to adduce two pieces of evidence on this ingredient.The first is evidence of PW1 the victim.Secondly is the medical report PF3A on which the victim was examined and tendered in court as PE.1.

1. The evidence of PW1 while in court was that I quote;

“I know the accused person in court. He stays in the village. I know what happened; the accused came to my house and got hold of me in my neck and mouth and raped me. There was a torch in my house lighting and I saw the accused. I only realized when the accused was inside the house and he got hold of me. I got pain in the chest and private parts. My daughter took me to the hospital”.

1. In cross- examination, PW1 confirmed to court that the accused got hold of her neck and mouth and made her lay on her back and raped her and he run away.
2. PW3’s relevant part of evidence to this case is that; while going to the hospital with the victim, they found the accused on the way, and when the victim saw the accused, she pointed at him as the person who raped her in the night. The accused ran away.
3. Another piece of evidence is the medical evidence contained in PF3A on which the victim was examined and the medical officer who examined her confirmed that;

• The victim’s chest and breast were paining due to much force the man used
• She had a back pain
• Her upper and lower limbs were paining and was unable to move properly
• The Genitals were normal although with irritations and said the probable cause was force used by the man.

1. Considering the above, as to whether there was unlawful sexual intercourse; it is now clear from PE.1 that the victim was examined and found with pains in different parts of her body and secondly, her genitals had irritations.
2. There is also evidence of the victim who told court that while in the house, the accused broke and entered her house and raped her. She testified that there was a torch in the house which helped her to identify the accused. This evidence is enough for Court to conclude that the state proved beyond reasonable doubt that PW1 was subjected to unlawful sexual intercourse to amount to rape. See Uganda Vs Odwong Dennis & Olonya Dickson [1992 – 1993] HCB 7
3. Whether the Victim Consented

In the English decision of the House of Lords by Lord Hallshem DPP V Morgan [1976] AC 182.  His Lordship held that “Rape consists of having unlawful sexual intercourse with a woman without her consent and by force.It does not mean there has to be a fight or blows have to be inflicted.It means there has to be some violence used against the women to over bear her will not to have sex with her attacker.

1. In view of the above, PW1’s evidence and PE.1 indicate that force was inflicted on the victim and she got pains in different parts of her body. Meaning there was no consent. In the case of Kibazo Vs Uganda [1965] 507 EACA it was stated that Court must be left in no doubt that the victim did not consent to the act of sexual intercourse. The evidence given by PW1 and in Exhibit P.1 left no doubt that Nantongo Jiraida did not consent to any sexual act that day.
2. Participation of the accused in the commission of the offence.

It is noted from the evidence of PW1 and PW2 that the offence happened in the night and therefore this raises a question as whether there was proper identification of the accused by the victim.

1. The law on identification by the single witness is that; Courts must be so cautious about evidence of a single identifying witness for the reason that while a witness may be truthful in his or her evidence as to identity of the accused, she/he may as well be mistaken due to failures which did not favour the witness to correctly identify the accused.  See Roria Vs R [1967] EA 583
2. Therefore, in order to eliminate mistaken identity, courts have come up with the following factors to guide in ensuring proper identification;

•  The period of time PW1 knew the accused.
• Circumstances under which PW1 identified the accused whether favorable or unfavorable.
• The distance between the two PW1 and the accused.
• Length of time accused remained under observation of PW1

1. PW1 told court that they were staying at the same village with the accused and that the accused raped her in the night. She said she had a torch which helped her to identify the accused.
2. PW3 also in her examination in chief told court that while they were going to the hospital, they found the accused on the way and the victim pointed at him and said he is the person who had raped her in the night and the accused ran away.
3. I agree the offence was committed in the night, but the availability of the light from the torch helped the victim to identify the accused since she had known him before the commission of the offence.
4. It is noted that in sexual offences, the distance between the accused and the victim is usually close and since it was a struggle, this court takes it that the time was lengthy enough to enable the victim to identify the accused.
5. In defence, DW1 (the accused) told court that he was arrested by Kubulasoke Police on allegations that he had raped the victim but he said it is not true.
6. In cross-examination DW1 said that he stayed in the same village with the victim and his home is in the place where the victim used to pass while going to other places. He also said that he had no grudge with the victim.
7. Considering the above, the fact that the victim knew the accused before the commission of the offence and the fact that the victim saw the accused person the next day after the commission of the offence and still recognized him as the person who raped her in the night, is proof beyond reasonable doubt that the victim properly identified the accused person.
8. Thus, this court finds that the prosecution proved the offence of Rape beyond reasonable doubt.
9. The accused is accordingly found guilty and convicted as charged.
   •  

Emmanuel Baguma

18/9/208

Accused in court

Attendance

M/s Betty Agola  Pr. State Attorney for Prosecutor

Mr. Kumbuga Richard for accused on state brief.

M/s Mbabazi Prossy Court clerk.

Mr. Tabula Edward

M/s Najjemba Regina           Assessors.

Prosecutor:    This case was for yesterday .  However the matter is for judgment.

Defence:                       That is the position my Lord.

Court:             Judgment is ready and  rad  in open court.

Prosecutor:

The aggravating factors  are as follows:

The  offence of  rape  is srious.  There was use of  force  to the victim y accused person.  The victim was of advanced age of 75  years old  at the time of the offence.  The victim was physically  important she was  deaf and dumb.  The offence of rape  is common in this area.  Considering the sessions held and convictions registered.  There is a  need for  harsh sentences to make suspects change.  I pray for 25 years imprisonment.

Defence counsel:

The Mitigating facts:-

The accused is  a first offender he has no criminal record .  The accused is capable of reforming.  The convict is  younger he was 28 years old at the time of arrest.  This  age normally  deceive  the youth.  I pray for leniency to enable the convict  reform.  The convict is a married man with a wife and two children 7 and 6 years  they wish to stay with their father.  Therefore while sentencing  I pray that the same be put into consideration.

Also the convict  has been on remand since 6/5/2016.today  he has been on remand for two years  , four months and 12 days.

Given  the  circumstances of the  convict being  a first  offender.  I pray  for 10 years.  I so pray.

Court:               Sentence in the after noon.

Emmanuel  Baguma

Judge

18/9/2018.

Later on at 2:30 p.m.

Attendance

Court is assembled as before

Sentence  and reasons for  sentence

The convict  was found guilty of the offence of  rape  c/s 123 and 124  of the  Penal Code Act. . After a full trial  in her submissions on  the    sentencing,  the learned  Regional State Attorney  prayed for  25 years as deterrent sentence and stated that the maxim punishment is death and that the  manner in which the offence was committed was use of  force and the victim was  vulnerable person who was  deaf and   dumb and of  advanced age  of 75 years.

Counsel for the convict  prayed for  10 years and stated that the convict  is the  first offender  as he had no previous  criminal record.

He  told court that the convict is capable of reforming given  an opportunity  and that the convict  was 28 years old at the time  of arrest which age  could have  lured him in the  commission  of the offence.  He requested court to consider the period of two years, four months and 12 days  the  convict  has been on remand.  That the  convict has a family  one wife and two children.

I have   considered  all the  aggravating and mitigating factors  mentioned by both the  prosecution and defence.  I have also considered the nature of the offence and circumstances under which the offence was committed and the fact that the victim as  deaf and  dumb .

Sentence

The  convict is sentenced to 17 years imprisonment.  I will subtract the 2 years, four months and 12 days , the convict  has been on remand.  The convict is therefore sentenced to serve a period of  14 years   seven months and 18  days  imprisonment.

Emmanuel Baguma

Judge

18/9/2018.

Court:               Right of appeal  within 14 days  explained  to the  convict.

Emmanuel Baguma

Judge

18/9/2018.