Odur Walter v Uganda (Criminal Appeal No. 41 of 2020) [2026] UGCA 190 (21 May 2026)

5 10 15 20 THE REPUBLIC OF UGANDA IN THE COURT OF APPEAL OF UGANDA AT KAMPALA [Coram: C. Kiryabwire, J. M. Musisi and E. Nambayo, JJA] CRIMINAL APPEAL NO. O4I OF 2O2O (Appeal from the decision of the High Court at Kampala, (Hon. Lady Justice Jane Frances Abodo in Criminal Session No. 291 of 201 9 dated 20th December, 20 19) ODUR WALTER :::::::::::::::::::::::::::::::::::::::::::::::::::::APPELLANT VERSUS UGANDA:::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::RESPONDENT This is a lst Appeal against conviction and sentence. The Appetlant was convicted ofthe offense ofAggravated Defilement under Section 129 (3) and (4), now Section I 16 (3) and (4)(a) ofthe Penal Code Act Cap 128, and was sentenced to 37 years, I I months, and 25 days' imprisonment. The facts admitted at the trial can be discemed from the Prosecution's case that on the 2nd day of December 2019,at Namuwongo, Makindye Division in Kampala District, the Appellant herein committed an unlawful sexual act with a girl named A L, aged 5 years. l,{ llPage fuilt JUDGMENT OF THE COURT l. Introduction Backgrou nd 5 PW. I (Victim) testified that one evening while playing with her friends, the accused person called her, bought her a soda, and took her to a water channel, from where he removed his clothes and slept on her. lt was her evidence that she wore a dress. She further told the court that the Appellant asked her to suck his penis using her mouth, which she did. That the Appellant then put his penis into her "susu" (vagina), causing her to feel pain. The victim pointed at her private parts to illustrate what she meant by susu. She then told the court that another man came and found the Appellant on top ofher. That she then wore her knickers, and he took her to her father. It was her testimony that when she inlormed her father that she had been defiled by the Appellant, her mother bathed her. The victim stated to the court that the incident took place at 5:00 pm and described that it was still bright before the lights were turned on. She also told the court that she was scared to inform the police that the Appellant asked her to suck his penis. Additionally, PW.2 (Okello Andrew) told the court that on the 2nd day of December, 2017, he was at Namuwongo trading center passing time. As he went to answer nature's call at about 9:00pm on the road going to "Mwala" (water channel), he found the Appellant, who seemed drunk, near the road. He told the court that the Appellant, whose trousers were down, and the victim were having sexual intercourse. He said he observed lrom a distance for about 5 minutes before confronting the Appellant, who told him that the victim was his daughter and that they had been evicted. PW2 accompanied the victim to look for her parents, informed them of what he had seen, and later retumed to the scene of the crime with them and the police, where they found the victim's knickers. PW.3 (Etayo Edison), the victim's father, told the court that PW'2, who brought the victim to him, informed him that PW.2 had seen the victim being defiled. He further testified that the victim's mother examined her private part and found it wet. PW.3 2lPage 10 15 20 25 30 t xtl\ 5 told the court that the victim, who was drunk, did not initially tell him anything, but as they were going to the police, she informed him that the accused person defiled her after buying her a soda that he had mixed with alcohol. He told the court that even the police smelled alcohol on the victim's breath. PW.3 visited the crime scene that night and saw the victim's white shorts and one blue sandal. He was told not to pick them up until the police arrived. PW.3 then reported the case to the police. PW.4 (lnvestigating officer) then visited the scene of crime and drew a sketch plan marked PEX.1 and further testified that the victim's grey shorts and a blue sandal were recovered from the scene, although not tendered in court. She told court that the PF.3A revealed that the victim's hymen was intact The Appellant (Odur Walter) raised the defense of alibi and denied having performed the alleged sexual act on the victim. However, the trial court found him guilty of the offence. He was convicted and sentenced to 37 Years, I lmonths and 25 days after deduction from a sentence of40 years, the period he spent on remand. Aggrieved by the decision, the Appellant filed this appeal challenging the conviction and sentence. Grounds ofAppeal l. That the learned trial judge erred in law and fact when she convicted the Appellant without proofofthe core ingredients ofthe offense, thereby causing a miscarriage ofjustice to the Appellant. 10 15 2Q t 3lPage Tuna 25 5 2. That the learned trial Judge erred in law and fact when she imposed a manifestly harsh and excessive sentence of 47years imprisonment against the Appellant Representation At the hearing of this Appeal, the Appellant was represented by Mr' Caleb Alaka and Ms. Sheila Kihumuro, and the Respondent was represented by Mr. Sam Oola, Senior Asst. State Attorney, and Ms. Kurusumu Kyomugisha, State Attomey' Both parties sought to rely on their written submissions already on court record and the Court granted them leave to do so. Counsel for the Appellant submitted that the prosecution bore the burden ofproving the offence of aggravated defilement beyond a reasonable doubt. The essential ingredients ofthe offence were stated to be: 1. That the victim was below the age of 14 years; 2. That sexual intercourse or penetration occurred; and 10 15 25 4, 4lPage a {Uttt Appellant's Submissions Counsel for the Appellant subrnitted that it is the duty of a first appellate court to reconsider and evaluate the entire evidence on record and arrive at its own independent conclusions. counsel argued that the appellate court must not merely rubber-stamp the trial court's findings, though it must bear in mind that it neither saw norheardthewitnessestestify.ReliancewasplacedonSelle&AnotherVs Associated Motor Boat Company Ltd t1968l EA 123 and Kifamunte Henry Vs Uganda' SCCA No. 10 of 1997. G rou nd one 20 3 5lPage That the accused person participated in the commission of the offence. 5 10 15 20 25 It was submitted that there was no dispute regarding the first ingredient since the evidence showed that the victim was five years old. However, Counsel contended that the prosecution failed to prove the remaining ingredients, particularly penetration and the participation ofthe Appellant' With regard to proof of penetration, counsel relied on the authority of Bassita Hussein vs Uganda, SCCA No. 35 of 1995, where the Supreme court held that sexual intercourse or penetration may be proved by direct or circumstantial evidence, which may be corroborated by medical or other evidence, provided that such evidence proves the case beyond reasonable doubt' Counsel submitted that in the present case the medical evidence did not support the prosecution's allegations of penetration. It was argued that the medical examination revealed that the victim's hymen was intact and there were no injuries to the vagina, mouth, or anus. According to counsel, considering that the victim was a child of five years and the alleged perpetrator was an adult male, any act of penetration would have caused inflammation or physical injury' Further submissions were made that the prosecution failed to call crucial witnesses' ln particular, the victim's mother, who said the victim's private parts were wet, and the medical officer who examined the victim did not testify' The medical report was also not tendered in evidence. Counsel further argued that the police investigator failed to conduct adequate investigations, including verifuing the alleged purchase ofsoda and waragi from the nearby shop and calling witnesses, such as the children who had been playing with the victim earlier that evening' v illttl 5 Counsel also argued that the prosecution failed to adduce corroborative evidence as required under section 155 of the Evidence Act. Reference was made to Uganda VsKhimchandKalidasShah&others[1966|EA30andKibaleIsmaVs Uganda, sCCA No. 21 of 1998, where corroboration was defined as independent evidence implicating the accused person by connecting him to the offence. It was submitted that such comoborative evidence was lacking in the instant case. on the question of participation, counsel submitted that there was insufficient evidence placing the Appellant at the scene of the crime. The Appellant had raised an alibi defense, stating that at the time of the alleged offence he was at home sleeping. Counsel argued that the prosecution failed to rebut this defense' Reliance wasplacedonKazarwaHenryVsUganda'SCCANo.lTof20lS,whereitwas held that an alibi may be destroyed only by prosecution evidence that places the accused at the scene of crime or directly negates the accused's claim. Counsel further submitted that the trial judge failed to properly evaluate the alibi defense and the prosecution evidence as required in Bogere Moses & Another vs Uganda, SCCA No. I of 1997, where the Supreme Court held that a court must evaluate both the prosecution and defense versions and give reasons for preferring one over the other. The Appellant also contended that the prosecution evidence was riddled with material contradictions and inconsistencies. It was pointed out that there were contradictions as to whether the victim wore shorts or knickers while leaving the scene of the crime, and that while the victim stated that the incident occurred at about 5:00 pm, the eyewitness testified that he discovered the Appellant at around 9:00 pm. counsel argued that such discrepancies went to the root of the case and undermined the credibility of the witnesses. Reliance was placed on Alfred Tajar 10 25 6lPage tl,, NU 15 20 10 20 25 VsUganda,EACACr.AppealNo.l6Toflg6g,wherethecour.theldthatevidence tainted by grave contradictions and satisfactorilY exPlained. inconsistencies may be rejected unless In view of these shortcomings, counsel submitted that the prosecution failed to prove theparticipationoftheAppellantintheoffencebeyondreasonabledoubt.The Appellant therefore prayed that the conviction be quashed and the sentence set aside' Ground 2 Altematively, counsel submitted that the sentence imposed by the trial court was harsh and excessive. It was argued that the trial judge failed to properly consider mitigatingfactors,includingtheAppellant'syouth'first-offenderstatus'and capacity for reform. Counsel relied on Naturinda Michael Vs Uganda' CACA No' 244 of 2014, which held that a sentencing judge is obligated to explain the aggravating and mitigating factors considered in arriving at the sentence' Counselalsoarguedthatthetrialjudgereliedonfactorsnotsupportedbythe evidenceonrecord,includingtheallegationthatthevictimhadbeenexposedto alcohol and sexually transmitted diseases. According to counsel' these findings were not supported by the medical evidence' TheAppellantfurtherreliedonauthoritiesemphasizingtheneedforleniencytoward first offenders, including Josephine Arissol Vs R [19571 EA 447 and AinobushoboziVsUganda,CACANo.242of2o|4,CounselalsocitedKabatera StevenVsUganda,CACANo'123of2001'whereitwasheldthattheageofan offender is an important factor in sentencing' TlPage l,tt, V ailil/t 15 5 Additionally, counsel submitted that sentencing should observe the principle of uniforrnity and consistency. Reference was made to I rlicle 2t(l) of the constitution of(JgandaandtoauthoritiessuchasBarugoJohnVsUganda,CACANo.208of 2014; Birungi Moses Vs Uganda, CACA No' 177 of 2011; and Oyoo Peter Vs Uganda (Criminal Appeal No. 363 of 2015) 120251 UGCA' , where sentences for aggravated defilement had been reduced on appeal' Finally, counsel relied on Kiwalabye Bernard Vs Uganda, Criminal Appeal No. 143 of 2006, where it was held that an appellate court may interfere with a sentence where it is manifestly excessive or based on wrong principles' In conclusion, the Appellant prayed that the appeal be allowed, the conviction quashed and the sentence set aside. In the alternative, the Appellant prayed that the sentence be reduced to a more lenient and appropriate term of imprisonment. Respondent's submissions Ground One The Respondent submitted that the second submissions filed by counsel for the Appellant under this ground deviated from the Memorandum of Appeal' It was contended that, instead of addressing whether the prosecution proved the essential ingredients of the offence, counsel for the Appellant focused on alleged contradictions in the prosecution's case. The Respondent thus confined its submissions to the ground as framed in the Memorandum of Appeal and the first submissions. 10 20 8lPage ( Sn{rt4 25 5 TheRespondentfurthersubmittedthattheprosecutionprovedalltheessential ingredients ofthe offence ofaggravated defilement under section 116(4) (a) ofthe Penal Code Act beyond reasonable doubt' namely: I . That the victim was below 14 years of age' 2. That a sexual act was performed on her' 3. That the Appellant participated in the commission of the offence' Regardingthevictim'sage,theRespondentsubmittedthattheevidenceofPW'3' thevictim,sfather,wasunchallengedandshowedthatthevictimwasaboutTyears oldatthetimeoftrial,whichwasalsoconsistentwiththetrialcourt,sown observation.Itwasthereforecontendedthatthiselementwasprovedbeyonda reasonable doubt. As regards the occurrence ofa sexual act' the Respondent relied on the testimony of PWl,thevictim'whogaveadetailedaccountoftheincidentandidentifiedthe Appellant as the perpetrator. It was submitted that her evidence was corroborated by PW.2, who found the Appellant in the act' as well as by PW'3 and PW'4' The Respondent citing Bassita Hussein Vs Uganda SCCA No' 35 of 1995 further contended that it is settred raw that penetration may be proved by direct or 10 15 20 25 and that medical evidence, though desirable' is not circumstantial evidence mandatory. ontheparticipationoftheAppellant,theRespondentSubmittedthatthetrialcourt properlyreliedontheconsistentandcorroboratedevidenceofPW.l,Pw.2'Pw.3 andPW.4.ItwasfurthercontendedthattheidentificationoftheAppellantwasfree fromerror'asthewitnessesknewhimpriortotheincidentandhadsufficient opportunitytoobservehim.TheRespondentmaintainedthattheAppellant,salibi ( 9lPage Atutt was effectively displaced by the prosecution evidence which placed him at the scene of crime. The Respondent therefore prayed that this Court finds that the prosecution proved its case beyond reasonable doubt and that this ground ofappeal should fail. Ground 2 The Appellant argues that the sentence of 37 years, I I months, and 25 days is manifestly harsh and excessive. The Respondent argues that the sentence is lawful and appropriate. The law on appellate interference with sentence is well settled. Sentencing is a matter ofjudicial discretion. An appellate court will not interfere with the exercise of that discretion unless it is shown that the trial judge acted on a wrong principle, overlooked a material factor, or that the sentence is so manifestly excessive or so low as to amount to a miscarriage of justice (Kiwalabye Bernard vs. Uganda, SCCA No. 143 of200l). We have carefully reviewed the trial judge's sentencing remarks (Pages 32-34 of the record). She correctly identified the maximum penalty (death) and took the starting point of35 years under the Sentencing Guidelines (Third Schedule, Item 3, Part I). She considered the aggravating factors: the victim was aged 5 years; the age difference was 25 years; the Appellant exposed the victim to alcohol and the risk of sexually transmitted diseases; and such offences are prevalent. She also considered the mitigating factors: the Appellant was a first offender, relatively young at 30 years, capable of reform, and had family responsibilities. She increased the sentence from 35 to 50 years due to aggravating factors, then reduced it to 40 years due to mitigating factors. Finally, she deducted the 2 years and 5 days spent on remand, arriving at 37 years, l1 months, and 25 days. The trial judge cannot be faulted for the process she followed. 10 15 20 -)( 30 l0 lPage { Xl,till 5 5 However, we are persuaded by the Appellant's submission that the final sentence, when viewed against the principle of uniformity and consistency as mandated by Article 2l(l) of the Constitution and emphasized by the Supreme Court in Aharikundira Yustina vs. Uganda (SCCA No. 0027 of 2015), is on the higher side compared to recent precedents from this court for similar offences. We have considered the authorities cited by both parties. The Appellant relied on Barugo John vs. Uganda (CACA No. 208 of 2014), where this court stated that sentences for aggravated defilement range from l0 to 17 years and reduced a life sentence to 12 years and l0 months; Birungi Moses vs. Uganda (CACA No. 177 of20ll), where this court reduced a sentence of30 years to l2 years; Oyoo Peter vs. Uganda (CACA No. 671 of 2015), where a sentence of l7 years was reduced to l2 years; and PC Amukuni John Michael & Anor vs. Uganda (CACA No. 160 of 20ll), where this court reduced a sentence of40 years to 20 years, specifically noting that the Appellants were first of-fenders. The Respondent, on the other hand, cited Byaruhanga Odi vs. Uganda (CACA No. 476 of 2016), where this court upheld a sentence of 37 years' imprisonment for aggravated defilement of an S-year-old, and Kaggwa Patrick Salongo vs. Uganda (CACA No. 0426 of 2015), where this court upheld a sentence of life imprisonment for aggravated defilement ofa 12-year-old. We note that while severe sentences have been upheld in some cases, this court has consistently reduced sentences in the range of30-40 years to terms of l2-20 years for first offenders in aggravated defilement cases. In PC Amukuni John Michael (supra), this court reduced a 4U-year sentence to 20 years, specifically noting that the Appellants were first offenders. This offence is undeniably heinous. The victim was a child of only 5 years. The Appellant breached the trust of a neighbour and a child who called him "uncle." He administered alcohol to incapacitate the child. A substantial custodial sentence is absolutely necessary for punishment, deterrence, and the protection ofthe girl child. 11 lPage 10 15 20 25 30 il'l'rlL ( 5 We do not suggest lhat a l2-year sentence would be appropriate in this case. The starting point of 35 years was correct. 10 However, we are of the considered view that a sentence ofover 37 years effectively extinguishes any realistic prospect ofthe Appellant, a first offender aged 30 at the time, being released with any productive years Ieft in his life. This court has previously reduced a 4}-year sentence to 20 years for first offenders. We believe a sentence of25 years of imprisonment properly balances the gravity of the offense, the need for deterrence, the Appellant's mitigating factors, and the need for consistency with this court's sentencing trends. We therefore find that the sentence, while not illegal, is manifestly excessive in the 15 clrcumstances. Conclusion: 20 L The appeal against conviction is dismissed. The conviction of the Appellant for Aggravated Defilement contrary to Section 129(3) and (4)(a) of the Penal Code Act (now Section I l6(3) and (4)(a) ofthe Penal Code Act Cap. 128) is upheld. 2. The appeal against sentence is allowed. 3. The sentence of 37 years, I I months, and 25 days' imprisonment is set aside and is substituted with a sentence of 25 years' imprisonment. 4. Pursuant to Article 23(8) of the Constitution of the Republic of Uganda, 1995 (as amended), and Regulation l5(2) of The Constitution (Sentencing Guidelines for Courts of Judicature) (Practice) Directions, 2013, the period of2 years and 5 days already spent on remand is deducted from the sentence of25 years. 5. The Appellant's new effective sentence is therefore 22 years, I I months, and 20 days' imprisonment, to be calculated from the date of this judgment. 25 ( 12 lPage Ground two of the appeal succeeds partially. 30 ilutA The appeal is disposed ofas above. We so order. Dated and signed at Kampala this.....2 8,- day of 2026. t 10 Geoffrey KilAabwire USTI OF PEAL 15 John ike Musisi JUSTICE OF APPEAL 20 Esta Nambayo JUSTICE OF APPEAL 13 lPage fno"^j