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Uganda v Kibirango Ali alias Musiramu (HCT-17-CR-SC-0025-2024) [2024] UGHC 1253 (18 July 2024)
- Citation
- [2024] UGHC 1253
- Status
- Judgment
- Jurisdiction
- Uganda
- Court
- High Court of Uganda
- Panel
- Wolayo, J
- Case number
- HCT-17-CR-SC-0025-2024
- Language
- English
More details
- Court
- High Court of Uganda
- Panel
- Wolayo, J
- Case number
- HCT-17-CR-SC-0025-2024
- Language
- English
On this page
Professional case brief
Research organized from the available case record
01
Holding and result
The court found that while the age of the victim and the occurrence of a sexual act were established by medical evidence and agreed facts, the evidence regarding the accused's participation was unreliable and contradictory. The testimonies of the victim's father and ASP Mutonyi failed to directly link the accused to the crime, and the absence of corroborating witnesses further weakened the prosecution's case. The court held that no reasonable tribunal would convict the accused on the evidence presented if he chose to remain silent. Consequently, the prosecution failed to establish a prima facie case, and the accused was acquitted.
Court disposition
acquitted
Orders
- The accused is acquitted of the offence of aggravated defilement.
- The accused is released from custody unless lawfully held in connection with another offence.
02
Material facts
Parties
Uganda
Applicant Counsel: Peace BashabeKibirango Ali alias Musiramu
Respondent Counsel: Emmanuel Damba03
Procedural history
Posture
Criminal Trial / Ruling at Close of Prosecution Case
04
Questions and positions
Legal issues
- 01
Whether the prosecution has established a prima facie case sufficient to require the accused to make a defense.
- 02
Whether the evidence adduced proves participation of the accused in the alleged aggravated defilement.
- 03
Whether the ingredients of aggravated defilement have been sufficiently proved.
Party arguments
- Applicant
- The prosecution argued that the victim was below 14 years, a sexual act was performed, and the accused participated. Evidence included medical examination (PF3A) showing the victim was 13 years and had a ruptured hymen and abrasions. Testimony from the victim's father and ASP Mutonyi was relied upon to link the accused to the crime and location.
- Respondent
- The defense challenged the reliability and credibility of the prosecution witnesses, highlighting contradictions in the victim's father's testimony and the lack of direct evidence linking the accused to the crime. The defense argued that the evidence was insufficient and did not establish participation by the accused beyond reasonable doubt.
05
Court’s reasoning
Legal principles
- 01
Bhat v R [1957] EA 332
A prima facie case is established when a reasonable tribunal, properly directing itself to the law and evidence, would convict if no explanation is offered by the accused.
- 02
Section 73(1) Trial on Indictment Act Cap 23; Penal Code Act s.129(3)(4)(a)(d)
The prosecution bears the burden to prove all ingredients of the offence beyond reasonable doubt, including age of victim, performance of sexual act, and participation by the accused.
06
Ratio, limits and disposition
Ratio decidendi
The court found that while the age of the victim and the occurrence of a sexual act were established by medical evidence and agreed facts, the evidence regarding the accused's participation was unreliable and contradictory. The testimonies of the victim's father and ASP Mutonyi failed to directly link the accused to the crime, and the absence of corroborating witnesses further weakened the prosecution's case. The court held that no reasonable tribunal would convict the accused on the evidence presented if he chose to remain silent. Consequently, the prosecution failed to establish a prima facie case, and the accused was acquitted.
Obiter and limits
- The contradictory statements of the victim's father regarding the whereabouts and circumstances of the victim undermine his reliability as a witness.
- The absence of testimony from key witnesses such as the LC1 chairman, who was instrumental in locating the victim, further weakens the prosecution's case.
- Finding the victim in a room allegedly rented by the accused, without his presence and without direct evidence, is insufficient to prove participation.
Court disposition
acquitted
- The accused is acquitted of the offence of aggravated defilement.
- The accused is released from custody unless lawfully held in connection with another offence.
Source and reliance status
High Court of Uganda
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.
High Court of Uganda
Judgment
THE REPUBLIC OF UGANDA
IN THE HIGH COURT OF UGANDA AT NAKASEKE
CRIMINAL SESSION CASE NO. HCT-17-CR-SC-0025-2024
UGANDA V KIBIRANGO ALI ALIAS MUSIRAMU
BEFORE LADY JUSTICE HENRIETTA WOLAYO
RULING
Introduction
1. At the close of the prosecution case, the court has a duty under Section 73(1) of the Trial on Indictment Act Cap 23, to determine whether the prosecution has made out a prima facie case sufficient to place the accused person on his defense. A prima facie case was defined in Bhat v R [1957]EA 332 as one where a reasonable tribunal properly directing its mind to the law and evidence will convict having regard to the evidence and if no reasonable explanation was forthcoming from the accused person.
2. The accused person in the instant case is indicted with aggravated defilement c/s 129(3) (4) (a) and (d) of the Penal Code Act. It is alleged that on 15.10.2021, the accused person performed a sexual act on K. J a girl aged thirteen years.
3. On 28.5.2024, the accused person denied the charge when the indictment was read to him. Prosecution was led by Peace Bashabe chief state attorney while the accused was represented by Emmanuel Damba on state brief.
4. Tumukunde Evans and Dr. Serunjogi Mohammed were appointed assessors and took the assessors’ oath on 6.6.2024 when hearing commenced.
Burden of proof
1. The prosecution had a duty to adduce credible evidence that disclosed the following ingredients of aggravated defilement: 1. Victim was below 14 years 2. Performance of a sexual act 3. Participation by the accused.
2. At this stage, the state has a duty to make out a prima facie case against the accused person sufficient for me to put him on the defense.
Age of the victim
1. It was an agreed fact that the victim was aged 13 years when she was examined on 17.10.2021 by Ssendi Emma of Nakaseke Hospital and his findings recorded on PF3A. Her own father Mutemere Mukulu Zubairu PW1 gave her age as 15 years as at 6.6.2024. This means in 2021 when the offence was allegedly committed she was approximately 13 years.
Performance of a sexual act.
1. This too was an admitted fact based on PF3A which shows the victim was examined on 17.10.21 and found with a raptured hymen and abrasions in her genitals.
Participation.
1. According to the victim’s father Mutemere Mukulu Zubairu, he came to know the accused person after this case. On 15.12.2021, he went into town to buy airtime and on his return, he found when the victim was not at home. One Amina informed him that she had disappeared at 8 p.m, Next day, he reported to the police and he learnt that the accused had taken his daughter. He actually quoted her as telling him that the accused had taken her as his wife but later said he had taken her to work.
2. Zubairu’s testimony is that the victim never revealed to him that she had been defiled and he learnt of it through the medical examination. He also revealed that he does not know where the girl is as she has switched off her mobile phones and at the same time, he said she lives with him in Kyagwe.
3. The contradictory pieces of evidence from Zubairu to the effect that the victim either went to work or to be a wife are not helpful and render the witness unreliable, moreover, he was not there when the victim was found in the home said to belong to the accused person.
4. The other witness the state relied upon is ASP Mutonyi Emma PW2, formerly attached to Butalango police station. It was her testimony that on 16.10.2021, LC1 Chairman of Kyolola one Kasule Rogers filed a report of a missing girl, K. J and that she was last seen with Nalutaya Farida on 15.10.2021. On mounting a search for Nalutaya, Mutonyi found her together with son of the accused who informed Mutonyi and team that his father had rented a house in the trading centre.
5. It is the LC 1 chairman who informed Mutonyi that the victim had been seen in the rented room of the accused person. On reaching the room, Mutonyi found the girl seated on the bed but the accused was not in the room and she told the officer that the accused had defiled her from there.
6. In cross –examination, ASP Mutonyi’s testimony was that the accused was her neighbor yet she denied knowing him and it is the LC1 chairman who led the police to the alleged room of the accused person.
7. The credibility of ASP Mutonyi is in issue since she claimed to be a neighbour to the accused person but did not know him. Furthermore, finding the girl in the rented room did not imply that it belonged to the accused person since he was not present at the time especially as it his unnamed son who told the chairman that the room belonged to the accused person. The chairman who was instrumental in tracking the whereabouts of the victim did not testify.
8. That the girl informed the officer that she had been defiled is not supported by her written statement to the police and therefore, this is weak evidence of participation of the accused in the crime.
9. In conclusion, the evidence on participation by the accused is so scanty that no reasonable court would convict the accused if the accused did not offer any explanation.
10. In the premises, a prima facie case has not been made out and accused is acquitted of the offence indicted. He is released from custody unless lawfully held in connection with some other offence.
DATED AT NAKASEKE THIS 18TH DAY OF JULY 2024.
\_\_\_\_\_\_\_\_\_\_\_
LADY JUSTICE HENRIETTA WOLAYO
Legal representation
Peace Bashabe, Chief State Attorney for the prosecution
Emmanuel Damba for the accused person on state brief
18.7.2024
Accused present
Kirabo holds brief for Bashabe Peace for the prosecution
Sekayiri holds brief for Damba for the accused.
Court: Ruling delivered.
Judge
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