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Rex v Sheshaho (Ct. App. No. 105 of 1938.) [1938] EACA 110 (1 January 1938)
- Citation
- [1938] EACA 110
- Status
- Judgment
- Jurisdiction
- Uganda
- Court
- East African Court of Appeal
- Panel
- Hayden J, Lane, Ag. J, Sheridan CJ
- Case number
- Ct. App. No. 105 of 1938.
- Language
- English
More details
- Court
- East African Court of Appeal
- Panel
- Hayden J, Lane, Ag. J, Sheridan CJ
- Case number
- Ct. App. No. 105 of 1938.
- Language
- English
On this page
Professional case brief
Research organized from the available case record
01
Holding and result
The Court found that, based on the evidence, the appellant's conduct amounted to defilement rather than rape. The girl's testimony regarding being promised money and the circumstances in which they were found supported this conclusion. The fact that the girl cried out during the act did not necessarily negate consent, as it may have been due to pain. Given the doubt regarding consent, the proper conviction was for defilement. Since the appellant was charged with both rape and defilement, the Court was competent to substitute the conviction for defilement and set aside the conviction for rape. The sentence imposed was deemed not excessive and was upheld. The appeal was dismissed with the variation in conviction.
Court disposition
appeal_dismissed_with_variation
Orders
- Conviction for rape set aside and substituted with conviction for defilement.
- Sentence to stand as imposed.
02
Material facts
Parties
Farasisiko Sheshaho
AppellantRex
Respondent Counsel: Dennison, Crown Counsel (Kenya)03
Procedural history
Posture
Criminal Appeal / Appeal From Conviction
04
Questions and positions
Legal issues
- 01
Whether the conviction for rape was proper given the evidence and charges.
- 02
Whether the conviction should be substituted for defilement based on the facts and charges.
Party arguments
- Applicant
- The appellant was absent and unrepresented; no arguments were presented on his behalf.
- Respondent
- The Crown argued that the conviction and sentence were proper and supported by the evidence, and that the facts justified the conviction for defilement rather than rape.
05
Court’s reasoning
Legal principles
- 01
Rex v. Yonasani (4 E. A. C. A. 29) distinguished.
Where an accused is charged on two counts, one of rape and one of defilement, it is competent for the appellate court to substitute a conviction for defilement for a conviction of rape.
- 02
Court's analysis of evidence and precedent.
The question of consent in sexual offences must be determined from the facts, and doubt as to consent may affect the nature of the conviction.
06
Ratio, limits and disposition
Ratio decidendi
The Court found that, based on the evidence, the appellant's conduct amounted to defilement rather than rape. The girl's testimony regarding being promised money and the circumstances in which they were found supported this conclusion. The fact that the girl cried out during the act did not necessarily negate consent, as it may have been due to pain. Given the doubt regarding consent, the proper conviction was for defilement. Since the appellant was charged with both rape and defilement, the Court was competent to substitute the conviction for defilement and set aside the conviction for rape. The sentence imposed was deemed not excessive and was upheld. The appeal was dismissed with the variation in conviction.
Obiter and limits
- The fact that the girl cried out does not necessarily negative consent; pain may have been the cause.
- The distinction from Rex v. Yonasani is that in this case, the accused was charged with both rape and defilement, allowing substitution.
Court disposition
appeal_dismissed_with_variation
- Conviction for rape set aside and substituted with conviction for defilement.
- Sentence to stand as imposed.
Source and reliance status
East African Court of Appeal
This page organises the available record for research. Confirm quotations, current status, and subsequent treatment against the official source before relying on the case.
Judgment reading view
Judgment text
The complete available source text.
East African Court of Appeal
Judgment
COURT OF APPEAL FOR EASTERN AFRICA
Before Sir Joseph Sheridan, C. J.; HAYDEN, J.; and LANE, Ag. J. (all of Kenya).
REX. Respondent (Original Prosecutor)
FARASISIKO SHESHAHO, Appellant (Original Accused) Cr. App. No. 105 of 1938.
Appeal from conviction by H. M. High Court of Uganda
Criminal law—Rape—Defilement—Conviction of rape altered to one of defilement.
The accused appealed from a conviction of rape. He had been tried on two charges $(a)$ with rape, and $(b)$ with defilement. The Court of Appeal was of opinion that on the facts the question of consent must be in doubt.
Held (18-7-38).—That as the trial was on two counts one of defilement and the other of rape, it was competent for this Court to substantiate a conviction of defilement for the conviction of rape. (R. v Yonasani (4 E. A. C. A. 29) distinguished.)
Appellant, absent, unrepresented.
Dennison, Crown Counsel (Kenya), for the Crown.
JUDGMENT (delivered by Sir Joseph Sheridan, C. J.).—From the facts of this case, we are of the opinion that the offence committed by the appellant was defilement and not rape. The girl's evidence that she was promised cents by the appellant and the position in which they were found more than strongly point to such conclusion. The fact that the girl cried out in the course of the act does not necessarily negative consent on her part. She probably cried out owing to the pain she was suffering at the moment. Putting it at the lowest the question of consent on the facts must be in doubt. Consequently the proper finding, we consider is defilement. Reading the case of Rex v. Yonasani (4 E. A. C. A. 29), it seems clear that this Court found itself unable to substitute a finding of defilement for rape for the reason that the accused had not been charged with defilement and that it was not competent to find defilement on a charge of rape. Here the appellant was charged on two counts $(a)$ with rape, and $(b)$ with defilement and we substitute a conviction for that offence and set aside the conviction for rape. The sentence, we consider is not excessive and will stand. With this variation in the conviction the appeal will stand dismissed.
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