Wakilii

Katende Ahamad v Uganda (Criminal Appeal 6 of 2004)

Supreme Court · [2007] UGSC 11 · 2007 Conviction Upheld ✦ AI-generated summary ↓ Download
Jurisdiction
Uganda
Case Type
Second criminal appeal from Court of Appeal decision affirming High Court conviction for defilement
Decision
Conviction for defilement upheld; appellant re-sentenced to ten years' imprisonment

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Holding

The Supreme Court dismissed the first ground, holding that the trial judge properly conducted the voire dire and that, because the child complainant understood both the duty to tell the truth and the nature of an oath, her sworn evidence required no corroboration under the proviso to s.38(3) of the Trial on Indictments Act; in any event the appellant's week-long disappearance was sufficient corroboration. On the second ground the Court held that a sentence imposed as a term 'inclusive of the years spent on remand' is improper under Article 23(8): a court must take the remand period into account and then pronounce a definite, ascertainable final sentence. The ground succeeded, but absent a cross-appeal the ten-year sentence was confirmed.

Facts

The appellant fathered the complainant (PW2) with PW3 before the parents separated. The complainant lived with her grandmother and the appellant's sister (PW4). After the grandmother died in April 1999, the appellant returned from Kampala to live in the same house. While PW4 was away, the appellant, sleeping on his late mother's bed, called the complainant, then aged about nine, and had sexual intercourse with her, threatening to cut her with a panga if she spoke. The conduct was repeated, including while picking coffee. The complainant eventually told her mother, and the matter was reported to LC officials and police. A doctor (PW1) examined her on 26 June 1999, confirming she was about nine years old and that her hymen had been ruptured. The appellant was arrested on 5 July 1999. In an unsworn statement he denied the offence, claiming his religious beliefs precluded it and that he was being framed over a land dispute. The assessors and trial judge believed the complainant and convicted him.

Issues

  1. Whether the trial court's conduct of the voire dire was proper and whether the child complainant's evidence required corroboration.
  2. Whether the unexplained disappearance of the appellant constituted sufficient corroboration of the complainant's evidence.
  3. Whether a sentence expressed as a term of imprisonment 'inclusive of the years spent on remand' is lawful under Article 23(8) of the Constitution.

Orders

  • First ground of appeal dismissed.
  • Second ground of appeal allowed.
  • Appellant sentenced to ten (10) years' imprisonment.

Key headnotes

Evidence — Child Witness — Voire Dire — Corroboration of Sworn Evidence
Where a voire dire establishes that a child of tender years possesses sufficient intelligence, understands the duty to tell the truth, and appreciates the nature of an oath, the child's sworn evidence is sufficient to found a conviction and corroboration is not obligatory under the proviso to section 38(3) of the Trial on Indictments Act.
Evidence — Corroboration — Conduct of Accused — Disappearance After Offence
The unexplained disappearance of an accused person for a period after the commission of an offence can constitute sufficient corroboration of the complainant's evidence.
Criminal Law & Procedure — Sentencing — Remand Period — Article 23(8) of the Constitution
A sentence expressed as a term of imprisonment 'inclusive of the years spent on remand' is improper; under Article 23(8) of the Constitution a court must take the period spent in lawful custody into account along with other relevant factors and then pronounce a definite, ascertainable final sentence that excludes the remand period.
Criminal Law & Procedure — Appeal — Sentence — Absence of Cross-Appeal
Where the prosecution has not cross-appealed against sentence, an appellate court cannot impose a sentence greater than that passed by the trial court, even where a more deterrent sentence might otherwise be warranted.

Legislation cited (3)

  • Penal Code Act s.123(1)
  • Trial on Indictments Act s.38(3)
  • Constitution of Uganda Article 23(8)

Cases cited (8)

  • Kabwiso Issa v Uganda (Criminal Appeal No. 7 of 2002)
  • Kyakika James v Uganda (Criminal Appeal No. 22 of 2001)
  • Kyalimpa Richard v Uganda (Criminal Appeal No. 130 of 1999)
  • Kiberu Christopher v Uganda (Criminal Appeal No. 66 of 1990)
  • Kizito Semakula v Uganda (Criminal Appeal No. 24 of 2001)
  • Sebule v Uganda (Criminal Appeal No. 22 of 2002)
  • Sande v Uganda (Criminal Appeal No. 46 of 2001)
  • Bashir Ssali v Uganda (Criminal Appeal No. 40 of 2003)
Source: this page presents Wakilii’s issue analysis and metadata for a publicly reported Ugandan judgment. Any AI-generated summary is marked as such. Judgment text is sourced from the Uganda Legal Information Institute (ulii.org). Wakilii is not affiliated with ULII.