Byaruhanga Alex v Uganda (Criminal Appeal No. 14 of 2021) [2026] UGSC 14 (16 April 2026)

THE REPUBLIC OF UGANDA IN THE SUPREME COURT OF UGANDA AT KAMPALA (CORAM: TIBATEMWA-EKIRIKUBINZA, TUHAISE, CHIBITA, MUSOTA, MADRAMA; JSC) CRIMINAL APPEAL NO. 14 OF 2021 BYARUHANGA ALEX I:::::::::::::::::::::::::::::::::::::::::: APPELLANT VERSUS UGANDA ::::::::::::::::::::::::::::::::::::::::::::::::::::::::: RESPONDENT [Appeal against the Judgment of the Court of Appeal at Kampala (Kiryabivire, JA; Bamugemereire, JA; and Kasule, AG. JA) dated 15th March, 2021 in Criminal Appeal No.088 of 2018.] JUDGMENT OF THE COURT This is a second appeal against the decision of the Court of Appeal which confirmed the appellant’s conviction and sentence by the High Court, (Abodo, J), for aggravated defilement. He was sentenced to 28 years and 5 months’ imprisonment.

Background

The brief facts of the case are that the victim Edith Nakibuka, 6 years old, lived with her grandmother Margaret Bukirwa at Nawanku Zone in Makindye Division, Kampala District. On 18th January 2015, the appellant arrived at Bukirwa’s drinking joint at 8:30 am and purchased waragi. After consuming the drink, he

departed. He later came back at 11:30 am and ordered more of the local gin. The grandmother observed that the victim was once again alone with the appellant inside the bar. She rebuked the victim and issued a firm warning to the appellant to refrain from becoming too familiar with her grandchild. Additionally, the grandmothei' also noticed that the child had a packet of cookies and a bottle of soda which the appellant had purchased for her. The appellant left around 5.00 pm coinciding with the time when all of Bukirwa’s grandchildren were heading to a birthday party in the neighborhood. The victim did not return home that night and appeared the following day at 7:30 am having been defiled. She disclosed and confessed to her grandmother that the uncle who had bought her the soda and cookies had taken her and that he had defiled her throughout the night. The appellant was subsequently apprehended, tried and convicted for the offence of aggravated defilement. He was sentenced to 28 years and 5 months’ imprisonment. The Court of Appeal upheld the conviction and sentence imposed by the trial court hence this appeal.

Grounds of Appeal

As per the appellant’s amended memorandum of Appeal, the appellant appealed against sentence only but the grounds were on both conviction and sentence. They are that:

1. The learned Justice of the Court of Appeal erred in law and fact when they upheld the conviction and sentence based on insufficient prosecution thus occasioning a miscarriage of justice.

2. The learned Justice of the Court of Appeal erred in law and fact by holding that the identification parade was not necessary to ascertain the identity of the appellant thereby prejudicing the Appellant.

3. The learned Justice of the Court of Appeal erred in law and fact by relying on hearsay evidence thus occasioning a miscarriage of justice.

4. The learned Justice of the Court of Appeal erred in law and fact when they upheld the conviction and sentenced the Appellant to a sentence of 28 years’ imprisonment without taking into account the period the Appellant had spent on remand thus rendering the sentence illegal, manifestly harsh, and excessive in the circumstance thereby occasioning a miscarriage of justice. The appellant invited court to allow the appeal and set aside conviction and sentence. In the alternative the sentence be substituted with an appropriate one. Representation At the hearing Mr. Muwonge Emmanuel represented the Appellant while Assistant D.P.P Nabisenke Vicky appeared for the respondent. Only the Appellant filed written submissions. To date, the respondent has not filed any submission having been guided to file by 15th April, 2025. It is essential for parties to comply with court-mandated deadlines and to take their professional responsibilities seriously in order to avoid disappointing their clients and hindering the fair and prompt

administration of justice. This is especially important and particularly true for representatives from government offices, such as the Director of Public Prosecutions. Such conduct is a disservice to the judicial process and the rule of law. Nonetheless court will in the interest of justice determine the matter on its merit given that it is the appellant’s case. APPELLANT’S SUBMISSION Appellant’s counsel argued grounds 1, 2, 3 together. The appellant faults the learned Justices for failing to re-evaluate the evidence. Counsel argued that it was necessary for the victim to identify the appellant or an identification parade ought to have been conducted to identify the appellant to ascertain the identity of the offender. Failure to do so prejudiced the appellant. Counsel further contended that the appellant’s conviction was based on insufficient prosecution evidence as well as the weakness of the defense case. He argued that the victim did not testify at trial and as such most of the evidence was hearsay. He argued that PW1 the grandmother to the victim was not present during the commission of the offence but was only told by the victim. Furthermore, that the prosecution evidence that the appellant’s act of running away at the time of arrest was consistent with an act of a guilty man did not impute guilt on the appellant and occasioned a miscarriage of justice. The appellant’s explanation for running away was that it was a very busy street with many people and he had other commitments.

The appellant did not deny being at the complainant’s shop (PW1) but that he had gone to buy waragi and after that he left the place. That the victim must have gone with someone else since the place had many people. Counsel therefore submitted that the appellant’s conviction was based on circumstantial evidence and that there was no direct evidence implicating the appellant. Court only relied on the evidence of PW1 the victim’s grandmother and PW2 the arresting officer. Counsel submitted that the circumstantial evidence against the appellant was therefore insufficient to sustain a conviction. Counsel relied on the case of Janet Mureebe v Uganda. SCCA No. 13 of 2003, Bogere Charles v Uganda. SCCA No. 10 of 1996, Simon Musoke v R (1956) EA 715 and Bulila Christiano & Anor v Uganda. SCCA No.61 of 2015 In relation to ground 4 on sentence, Counsel argued that the learned Justices did not make an arithmetic deduction of the period spent on remand although they took cognizance of the period the appellant spent on remand. Counsel submitted therefore that the sentence was illegal, excessive and harsh. He argued further that courts need to consider consistence in sentencing as per Part 3 and guideline 6 of the Sentencing Guidelines. He relied on Constitution (Sentencing Guidelines for Courts of Judicature (Practice) and Ninsiima Gilbert vs Uganda C.A No 0180 of 2010. Counsel prayed that Court sets aside this sentence and in the alternative substitute it for a legal sentence. CONSIDERATION OF COURT

We have carefully perused the record of proceedings and the submissions of the appellant together with the authorities cited. In summary, counsel for the appellant contends that the appellant’s conviction was entirely based on circumstantial evidence and no direct evidence implicated him to the crime. The appellant was not properly identified since no identification parade was held, the victim did not testify, and the prosecution witnesses were not present when the offence was committed. The victim’s grandmother only received information from the victim indicating that the appellant had engaged in sexual intercourse with her, which is considered hearsay and therefore inadmissible. At the time of arrest, in his defence the appellant explained his flight by stating he had other commitments and did not acknowledge any wrongdoing. As a result, the evidence put forth by the prosecution was insufficient to justify a conviction. From the appellant’s submissions, the issue for determination is whether the appellant was properly identified as the person who committed the offence to sustain a conviction against him. The role of this Court on second appeals is settled. Except in the clearest of cases where the Court of Appeal has failed in its duty, this court is not required to re-evaluate the evidence like a first appellate Court. This court will only interfere with the decision of the first appellate court if it is evident that the first appellate court in approaching its task failed to apply the relevant principles correctly resulting into a miscarriage of justice. See: Kifamunte Henry v Uganda No. 10 of 1997(SC).

Court will also not interfere with the concurrent findings of fact by the lower courts, unless there is no evidence to support them. See: Sgt. Baluku Samuel & Anor v Uganda [2018] UGSC

26. We note that the learned Justices in re-evaluating the evidence were alive to their duty and in their judgment noted that the case was entirely hinged on circumstantial evidence and rightly stated the law on this principle. Court proceeded to handle the grounds which were all hinged on the question of who did it? They found rightly in our view, based on the circumstantial evidence and in the absence of the victim’s testimony at trial that the appellant was properly identified as the person who committed the offence. It is trite that in a case depending exclusively upon circumstantial evidence, court must find, before deciding upon conviction, that inculpatory facts were incompatible with the innocence of the accused and incapable of explanation upon any other reasonable hypothesis than that of guilt. See: Bogere Charles v Uganda, [1998] UGSC 28, Simon Musoke V R (1956) EA 715 and Janet Mureeba v Uganda, [2006] UGSC 24 Furthermore, Court has emphasized that although very often circumstantial evidence may offer the best evidence as it can prove a case with mathematical accuracy, it must always be narrowly examined because evidence of this kind may be fabricated to cause suspicion on another. Consequently, before inferring the guilt of an accused person from circumstantial evidence, it is necessary to ensure that there are no other co-existing circumstances which would weaken or destroy the inference. See Bogere Charles v Uganda (supra), Majidu Mudasi v Uganda [1998] UGSC 18 and Wetsenge Robert v Uganda [2025] UGSC 51.

Thus the criteria depending on the circumstance of a case can be summarized that: the circumstances leading to an inference of guilt must be cogent and firmly established; these circumstances should exhibit a definite inclination that unerringly points to the guilt of the accused; when considered collectively, the circumstances should form a comprehensive chain that it eliminates any doubt that, within all human probability, the crime was committed by the accused; and there must be no other coexisting circumstances that would weaken or destroy the inference of guilt. In the instant case the trial court and the Court of Appeal accepted the evidence that the appellant was properly identified as having defiled the victim although the victim did not testify. This therefore according to the appellant did not ascertain the identity of the appellant as the perpetrator. The learned Justices in re-evaluating the evidence addressed the appellant's contention regarding the failure of the victim to testify and observed as follows: “According to PW1 the minor was removed from PW1 by her father after the sexual assault was occasioned on her. The next time PW1 saw Nakibuuka was at the trial. When they met at the trial the child’s personality had taken a turn for the worse. She was blank, uncommunicative, withdrawn and morose. The Trial Judge was perplexed by a child witness who could not testify and did whatever was within her powers to support her but came to the conclusion that the child was too traumatized to testify. When the Court was faced with the decision whether or not to put the minor on the stand the Trial Judge found that she could hardly carry out a voi dire. The Judge noted down what happened in her chambers and made the following ruling:

" I have heard from both counsel and one thing is clear that, the interest of the child is very paramount. We have to avoid re-victimization. The father of the victim has stated that the -victim that the victim changed behaviour from the time of this incident and does not remember anything from the incident, she doesn't even remember the grandmother. In the interest of justice and the duty of Court to protect child victims, I am dispensing with her appearance as a witness”... ...Having dispensed with the evidence of the minor, the Trial Judge depended only on the medical evidence, the grandmother's account of what happened immediately before the event and after the child was found.... We agree with the Trial Judge that it was correct to dispense with the evidence of the child. We have come to the conclusion that soon after the event Nakibuuka was able to speak out about who defiled her. Unfortunately, 3 years later as a nine-year-old, her life took a turn for the worse. Her character got deformed and she became morose. The trauma this child suffered was capable of deforming her. We therefore find that as a result of her trauma the evidence of an adult who saw her when she staggered on the morning after is extremely vital... ...We, however, do believe her examination-in-chief when she testified that the child blurted out that she had been with the Appellant all night and he had defiled her. We do not find any conjecture in PW1 when she gave that part of her testimony. She was a truthful witness. Children tend to confide in persons they trust when they are in trouble. These types of scenarios are on the rise and indeed it is increasingly becoming possible for a defilement case to lack a victim because they are or too traumatized to speak. This does not mean that circumstantial evidence cannot aid the Courts... A victim who has suffered trauma such as Nakibuuka needs as much protection from the law. From the above case it is important that Courts do not discount the statements made to third parties by minors or persons with learning disabilities. It is perhaps the only way such incapacitated persons can communicate. Rather than ignore such evidence, we believe that indeed PWl's testimony was vital in pinning the Appellant. PW1 evidence cannot be discounted...” We share the same view with the learned Justices and find that in many cases involving claims of sexual abuse against a young child,

the sole evidence may be found in a statement made by the child to a third party. This court has accepted evidence where a victim who would have given evidence as the only eye witness did not testify but the circumstantial evidence was sufficient proof to convict the accused person. In the case of Omuroni v Uganda, [2002] EA 531, where the victim of defilement did not testify but narrated the incident to her father, this Court held that “Although the victim did not testify, PW1 ’s evidence that the victim accused the appellant of having had sexual intercourse with her, was admissible as the accusation was made contemporaneously with the offence and therefore was part of res gestae and is an exception to the hearsay rule.” This illustrates that the synchronized and immediate account given by a minor to responsible adults at the first reasonable opportunity may be permitted, especially when corroborated by other independent evidence provided it establishes a clear and continuous connection that strongly suggests the accused guilt. Such evidence is essential, particularly when the child cannot testify for valid reasons such as incompetence, is unable or unavailable to give testimony, or cannot clearly recount the events. Additionally, if the judge believes that testifying may lead to distress or harm for the child, such evidence becomes even more critical. Excluding it would result in the court missing crucial evidence. The court may permit the testimony of a third party, provided that adequate evidence is submitted, and courts have shown great

caution regarding the reliability of the child's account to the third party when evaluating the circumstances. Sufficient reason in this case was given by the courts for dispensing with the victim’s testimony. We are of the view that in such circumstances the evidence of the victim’s grandmother was crucial given that the child immediately after the incident detailed the occurrences that transpired. The absence of the child’s testimony did not in our view prejudice the appellant given that there was an unbroken chain of cogent corroborative evidence. Although it is ideal that a victim’s testimony ought to be given whenever necessary, in our view, if there is sufficient evidence to support the prosecution's case, the absence of the victim’s testimony, would not as a rule, be fatal to the conviction of the accused person depending on the circumstances of the case. In the case of Hussein Bassita vs. Uganda; Crim. Appeal No. 35 of 1995 (SC), this Court stated that:- “The act of sexual intercourse or penetration may be proved by direct or circumstantial evidence. Usually the sexual intercourse is proved by the victim’s own evidence and corroborated by the medical evidence or other