14.My duty as the first appellate court is to re-consider and re-evaluate all the evidence adduced before the trial court and come up with an independent decision. I did not have the opportunity to observe the witnesses as they testified. I will give allowance for that.
15.The evidence is straight forward. The complainant, the victim of this offence is a daughter of the appellant. There is no doubt of that fact as the record shows although the appellant seems to claim that there is no evidence to show that he is the father of the complainant. From the outset, I find that this issue, that the appellant is the father of the complainant has been proved and admitted.
16.On January 15, 2017, the complainant accompanied her father the appellant to go to town. According to her evidence, she wanted the appellant to buy a pen for her. Somewhere along the way at a riverbed with a cluster of trees, the appellant stopped walking, removed the complainant’s skirt and his trousers and had sex with the complainant. According to the complainant, she heard the appellant say that someone has seen them and named the person as mama G/G, a person known to both. Fearing to be identified, the appellant held the complainant’s hand and both started running away. They boarded a boda boda and went into town. After shopping, they returned home whereupon the complainant was confronted by the woman who had seen them and beaten over the incident.
17.NN, PW3, is the woman referred to as mama G/G. She testified that while looking for firewood on January 15, 2017 at around 5pm she saw the appellant having sex with his daughter the complainant. According to her evidence, the complainant was seated leaning against the edge of the ditch while the appellant was having sex with her. According to her, the child had her blue jeans skirt pulled up, with panty removed while the appellant had light blue trouser which had been lowered to his feet. She testified that when the appellant saw her they started running away as the appellant attempted to zip up his trousers as he ran. She testified that the two boarded a boda boda and rode away. Later she confronted the girl at her home and beat her for doing what she had done.
18.The offence of incest is created by Section 20(1) of the Sexual Offences Act, which provides that:
19.The above provision gives the ingredients required to sustain a conviction of incest once proved. The relationship of the victim and the perpetrator must be proved. The age of the victim must be proved for purposes of the appropriate sentence. The indecent act or an act which causes penetration must be proved.
20.From my reading of the record in this appeal, I am satisfied that the issues raised by the Appellant relate to:i.insufficient evidence to prove the case beyond reasonable doubt;ii.the inconsistencies in evidence;iii.the issue of a grudge between the appellant and complainant;iv.the issue of voir dire examination;v.harsh sentence, andvi.age of the complainant.
21.On the relationship between the complainant and the appellant, there is evidence from the complainant that the appellant is her father. She identified the appellant in court as her father. PW3 testified that she saw the appellant having sex with his daughter on January 15, 2017. Both were known to her. PW4, J, who was identified by complainant as her step mother told the court that she received information from PW3 that the appellant had been found having sex with his daughter. In his defence, the appellant acknowledges the complainant as his daughter. This evidence satisfies me beyond reasonable doubt, that the appellant is the father of the complainant.
22.On the issue of grudge between the appellant and the complainant, it is my finding that there is no evidence to prove there existed such a grudge.
23.On the issue of inconsistencies in the evidence of the complainant and that of PW3, I have considered all the evidence. The complainant told the court that her skirt and the appellant’s trousers had been removed. According to the evidence of PW3, the girl’s skirt had been pushed upwards while the appellant’s trouser had been lowered. I do not see any inconsistencies in the evidence. To my mind, it is a matter of semantics. There is sufficient evidence to show that the appellant had sex with the complainant. They were found in the very act.
24.On the issue of the age of the complainant, there is evidence to show that she was aged 12 years. That is what she told the court and further confirmed by an age assessment report produced as exhibit 3 produced by PW5 SGT Khadija Ibrahim. For purposes of the offence under trial, she was under 18 years of age and falling under the proviso to section 20 (1) of the Sexual Offences Act.
25.On the issue of penetration, PW1 testified that the Appellant removed her skirt and also removed his trousers and started defiling her. She further stated that it was not the first time he was doing that to her; that he would wait for her step mother to go away and he would carry her from bed and that the appellant used to threaten to cut her with a panga if she told anyone. This was corroborated with the testimony of PW2 who stated that the complainant’s labia minora and majora were swollen, her hymen was also broken leading to the conclusion that the child had engaged in sex as the hymen was partly torn. Further PW3 an eye witness had seen the appellant having sex with his daughter. There is therefore no doubt that penetration was proved beyond any reasonable doubt.
28.I have read the record of the trial court. It shows that on September 25, 2017, the learned trial magistrate recorded as follows:MN child aged 12 years unsworn and states in Kiswahili:-
29.It is clear to me that the record does not accord with the provisions of Section 19 (1) of the Oaths and Statutory Declarations Act. The purpose of conducting a voir dire examination is for the court to satisfy itself that the child of tender years (14 years and below) understands the nature of oath. If the child does not understand the nature of oath, his/her evidence may be received, though not given upon oath, if, in the opinion of the court the child is possessed of sufficient intelligence to justify the reception of the evidence, and understands the duty of speaking the truth.
30.Further in the the Maripett Case (supra) the Court of Appeal held that:
31.The only way a trial court is able to determine if a child of tender years understands the nature of oath is by conduction a voir dire examination and asking particular questions aimed at establishing that fact. The record of the lower court does not show that voir dire examination was conducted in the manner envisaged under the law. It is a botched examination and cannot be termed as a voir dire examination. However, this does not mean that all is lost. As shown above in the Maripett case, even though what was done here cannot be said to be a voir dire examination per se, there is sufficient independent evidence to support the charge.
32.Before I consider the issue that the sentence is harsh, it is my duty to determine first if the evidence adduced in the lower court is sufficient to prove the case against the appellant beyond reasonable doubt. I have re-evaluated all the evidence tendered and re-considered it. I am satisfied that the appellant committed the offence. There is the evidence of the victim herself which evidence is corroborated by that of an eye witness, PW3. There is the medical evidence confirming that the complainant had been defiled. I am satisfied that the case against the appellant has been proved beyond reasonable doubt.
33.On the issue of harshness of the sentence, I agree with the Appellant that the trial court misapprehended the proviso to section 20 (1) of the Sexual Offences Act by misconstruing the words “shall be liable to life imprisonment” to mean maximum mandatory sentence. In Opoya v Uganda (1967) EA 752 the Court was of the view that these words provide a maximum sentence only and the courts have discretion to impose life sentence in deserving cases or any other lesser sentence.
34.In Ogolla s/o Owuor, (1954) EACA 270 the Court stated as follows:
35.For the reason that the trial court misinterpreted the proviso to section 20(1) of the Sexual Offences Act, this court, sitting on appeal, has no choice but to interfere with the sentence and alter it.
36.In conclusion, it is my finding that the case against the Appellant has been proved beyond reasonable doubt. The conviction is hereby upheld. However, I will, and do hereby, alter the sentence from life imprisonment to 20 years imprisonment. The sentence shall commence from the date the Appellant was sentenced by the lower court until the sentence of 20 years is served. It is so ordered.