THE REPUBLIC OF UGANDA 
IN THE SUPREME COURT OF UGANDA 
ATMENGO 
(CORAM: WAMBUZI, C.J., ODER, J.S.C., KAROKORA, J.S.C.) 
CRIMINAL APPEAL NO. 38 OF 1995 
BETWEEN 
MUHIRWE SIMON 
....................................................... APPELLANT 
...............•.................•....... 
AND 
 	 	 	............ RESPONDENT

.••.•.•..•....•....•.........•••...•••••••.••........... 
(Appeal from a conviction of the High Court of Uganda at Kabale 
(Mr. Justice R. Rajasingham Q.C) dated 1h September 1995 in 
High Court Criminal Session Case No. 103 of 1995) 
JUDGMENT OF TE[E COURT. 
This appeal is against a conviction for defilement contrary to Section 123 
of the Penal Code. 
There is no appeal against the sentence of 8 years imprisonment but leave 
of the Court was granted to appeal against the sentence of 6 strokes of the 
cane. 
Mildred Asiimwe, a Primary School girl aged about 11 years, was in the 
company of two other girls picking flowers in a garden around 3.00 p.m. 
in Buhara Village, Kabale District. 
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She described in detail how the appellant frightened the three girls and 
ravished her. Her story of the attack was confirmed by one of the two 
girls, Agnes Kembabazi. Apparently this was on a Friday. 

As a result of information given to her on Saturday by an unnamed lady, 
Rukeijakare, mother of Asiimwe, questioned Asiimwe as to what 
happened the previous day when she went to school. Asiimwe told her 
mother how she had been attacked by a boy when they were picking 
flowers in the company of other girls. She named the other girls Kereya 
and Kembabazi. She wanted to know who had done this thing, so she 
went to inquire. She asked Agnes who did not know their assailant 
either. 

On information from Agnes' mother Rukeijakare returned home, 
examined Asiimwe and noticed pus in her private parts. She boiled water 
and washed her. She went to look for the boy, but apparently without 
success because on Sunday she went to ask Kereya, the third girl. She 
then went of the appellant's home accompanied by Asiimwe. 

In the presence of the appellant and the appellant's mother. Asiimwe 
repeated what happened to her on the previous Friday. The appellant 
stated he could not deny it. Rukeijakare then said since the appellant was 
a relative, all she wanted was to take Asiimwe to hospital. The appellant 
agreed to pay Shs -, 4,0001- as medical expenses. The group went to visit 
the scene accompanied by a brother of the appellant. The mother and 
brother of the appellant agreed that Asiimwe should be taken to hospital. 
Back at the appellant" s home the appellant wrote a chit which he gave to 

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Rukeijakare. The chit was an undertaking to bring the money that 
afternoon, so that Asiimwe could be taken to Kabale the next day. 
The appellant went to Rukeijakare's home in the afternoon at about 5.00 
p.m. to say he had faded to raise the money. The appellant prayed for 
mercy, saying he would go and tell his father. He went away but did not 
return. The following day Rukeijakare went to Agnes' father from where 
she went to report to the RCs of the area who advised her to report to the 
Gombolola Headquarters. Someone advised her to go back to the 
appellant's home. In the presence of the RCs, Butera, father of the 
appellant agreed to pay for the medical treatment of Asiimwe as the 
appellant had run away. Rukeijakare ultimately reported the matter to the 
police. 
Dr. Pius Ruhemmana examined Asiimwe on the 17th January 1993. She 
was aged 11 years, had a ruptured hymen and she felt pain in her private 
parts but was without visible external injuries or bruises. In his 
estimation rapture of the hymen was as recent as six days. He thought 
the rapture of the hymen was a case of defilement. 
The appellant gave evidence on oath, denied the offence and set up an 
alibi that on the day of the alleged offence he was in Ntungamo at the 
alleged time. 
Both assessors. recommended that the appellant be found guilty of the 
offence giving their reasons. 
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The learned trial Judge considered all the evidence and stated, 

"This is an unusual case because it has a purported 
eye witness to a sexual assault I was very impressed 
with the evidence of Kembabazi Agnes. She spoke 
clearly anti at a reasonable level and did not seem at all 
overawed by her surroundings. She never hesitated and 
in my estimate of her character she was just the sort of 
person to be told enough to defy the warning and 
satisfy her curiosity by peeping through her blindfold 
The victim Asiimwe was shy and timid and just slow 
enough to have believed it was a sorghum stick being 
used by Agnes as the accused had told her. But even 
she seems to have realised it was not. The victim's 
mother WaS full of anguish at what had happened but 
more so at the treatment her complaints received and at 
the hands of the accused and his father. I have no 
doubt that when this irate lady confronted him with her 
daughter '.'i' story, the accused accepted the truth of it to 
try to turn aside her anger by offering to pay for the 
girl's treatment. 

I have 110 difficulty in concluding that the accused's 
attempt at an alibi has been disproved by these three 
witnesses - the girls, Asiimwe and Agnes and the 
victim's mother. It was broad daylight and they were 
within beating range of the accused and could not have 
failed to see him clearly enough to now identify him 
with certainty. The evidence of the two girls along with 
that of the mother of the pus in the vagina and the 
doctors evidence of a vagina ruptured a week before 
11h June, 1993, leave no doubt as to the fact of 
defilement and penetration. I agree with the assessors. 

I therefore find the accused guilty and convict him of 
the offence of defilement contrary to Section 123 of the 
Penal Code. " 

The appeal against conviction IS on SIX grounds, the seventh was 
abandoned. 

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Learned Counsel for the appellant, Mr. Lubwa, argued ground 2 and 3 
together. In these two grounds the appellant complained that it was an 
error in law to base a conviction on the evidence of a child of tender 
years first, without conducting a vior dire and secondly without 
corroboration. 

According to the record Kembabazi was aged 13 years when she 
testified. The record also show that Asiimwe, the complainant, was also 
aged 13, but a voir dire was conducted by the learned trial Judge although 
it appears that the witness was first sworn and then the voir dire was 
conducted. The correct procedure in such a case would have been to 
conduct the voir dire first and then to swear the witness if the Court is 
satisfied that the witness should be sworn. 

Be that as it may, it is a little strange that in the case of Kembabazi who 
is stated to be the same age as Asiimwe no voir dire was conducted. 

Section 38 (3) of the Trial on Indictments Decree, 1971 provides, 

"Where, in any proceedings a child of tender years 
called as a witness does not, in the opinion of the Court, 
understand tile nature of an oath, his evidence may be 
received though not given oath, if, in the opinion of the 
Court, he is possessed of sufficient intelligence to justify 
the reception of the evidence, and understands the duty 
of speaking tire truth. 

Provided that where evidence admitted by virtue of this 
sub-section is given on behalf of the prosecution, the 
accused shall not be liable to be convicted unless such 
evidence is corroborated by some other material 
evidence in support thereof implicating him. " 
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The expression "child of tender years" is not defined in the Decree but 
considering a similar provision the Court of Appeal in Kibangeny Arap 
Kolil v. R. 1959 E.A 92 at page 94, had this to say; 
"There is no definition in the Oaths and Statutory 
Declarations Ordinance of the expression 'child of tender 
years' for the purpose ofs.19. But we take it to mean, in 
the absence of special circumstances, any child of an age, 
or apparent age, of under fourteen years; although, as 
was said by Lord Goddard, CJ. in R. v. Campbell (1), 
(1956) 2 All E.R. 272, 'whether a child is of tender years 
is a matter of the good sense of the Court .... ' where there 
is no statutory definition of the phrase. The two boys in 
this case, both of whom were estimated to be under 
fourteen years old, must therefore be considered as 
children of tender years. " 
The Court went on to say at page 95. 
“In the present case the learned trial Judge, so far as 
appears from the record, made no such investigation 
before affirming either of the two boy witnesses. Such 
an investigation need not be a lengthy one, but it must 
be made and, when made, the trial Judge ought to 
record it His only note of any relevance upon the 
record was one written after the conclusion of the 
evidence of the elder of the two boys, and before the 
calling Of the younger boy, that: 
'the witness appears to be a boy of twelve to 
fourteen but answers intelligently!' 
That is not enough. The investigation should precede 
the swearing and the evidence, and should be directed 
to the particular question whether the child 
understands the nature of an oath rather than to the 
question of his general intelligence. Since the evidence 
of the two boys was of so vital a nature we cannot say 
that the learned trial Judge's failure to comply with the 
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	requirements of s.19(1) was one which can have 
occasioned no miscarriage of justice and upon this 
ground alone the appeal must be allowed. " 
In the case before us quite clearly the learned trial Judge was in error but 
although Kembabazi' s evidence is vital and was relied upon by the 
learned trial Judge there is other evidence unlike in the Kibangeny case 
where the evidence of the two boys was the only evidence. 
There is the evidence of Asiimwe and that of her mother an accordingly, 
we do not think there is merit in the second ground of appeal that the 
learned trial Judge erred in law and fact in convicting the appellant on 
uncorroborated evidence of a child of tender years in so far as that 
ground relates to the evidence of Kembabazi. Under Section 38 (3) of the 
Trial on Indictments Decree, 1971 corroboration is required as a matter 
of law only if evidence is received not on oath from a child of tender 
years, who in the opinion of the Court, is possessed of sufficient 
intelligence to justify the reception of the evidence and who understands 
the duty of speaking the truth. 
A matter which could. have been raised but was not, was the absence of 
any warning to the assessors and, indeed, to the learned trial Judge 
himself of the danger of convicting on the evidence of Asiimwe without 
corroboration. In the case of Kabura v. Republic 1974 E.A. 188 Saiedi 
J, as he then was, said at page 189: 
"It is now settled that even where the evidence of a child 
of tender years is sworn, then although there is no 
necessity for its corroboration as a matter of law, a Court 
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ought not to' convict upon it, if uncorroborated, without 
warning itself 0 the danger of so doing. The question 
which I must ask myself is whether in the circumstances 
of this case these irregularities have occasioned a 
miscarriage of justice. 
The position is not dissimilar to' Kalil's case (supra) 
where the evidence of two boys of tender years was 
received on affirmation after in irregular voir dire with 
no direction as to' corroboration of their evidence. The 
appeal was allowed nil the ground that both irregularities 
had occasioned a miscarriage of justice. That case is of 
interest in so far as the Court of Appeal had this to' say at 
the end of its judgment at p. 96. 
'Had there in fact been corroboration of 
their story, implicating the appellant, we 
might have held the failure to have 
occasioned no miscarriage of justice. But 
since there was no such corroboration, nor 
any admission by the appellant, the failure 
affords an additional ground for allowing 
the appe4'll '. " 
There was the evidence of Rukeijakare that the appellant admitted assault 
on Asiimwe and offered to pay medical expenses in the presence of his 
father. The learned trial Judge noted the anguish of this witness at what 
had happened to her daughter. He had no doubt she was irate when she 
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confronted the appellant with her daughter's story but accepted her 
evidence as true. 
The appellant was represented by counsel in' the Court below. There was 
no objection to this evidence when it was adduced. Rukeijakare was not 
cross-examined on this evidence. The appellant in his evidence denied 
generally that the evidence of Rukeijakare was true. Rukeijakare testified 
in detail including the fact that her daughter Asiimwe told her that she 
did not know her assailant and had to beat her to elicit the story of her 
sexual attack. She does not appear to have been anxious to implicate 
anybody. In the circumstances we hold that the admission of the 
appellant to Rukeijakare amounted to sufficient corroboration of the 
evidence of both Asiimwe and Kembabazi that Asiimwe was sexually 
abused. We are satisfied that the failure to hold a voir dire in respect of 
. Kembabazi did not occasion a failure of justice and accordingly both 
ground 2 and 3 must fail. 
In ground 5 the appellant complained that the learned trial Judge erred in 
law in failing to comply with requirements regarding summing up to the 
assessors. Mr. Lubwa referred to Section 81 of the Trial on Indictments 
Decree, 1971 which provides in subsection (1) thereof as follows:- 
"When the case on both sides is closed, the Judge shall 
sum up the law and the evidence in the case to the 
assessors and shall require each of the assessors to state 
his opinion orally and shall record each such opinion. 
The Judge shall take a note of his summing up to the 
assessors. " 
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Learned Counsel submitted that there was no direction to the assessors 
as to the need for corroboration in sexual offenses. 
We think this ground of appeal is unhappily worded. The record 
indicates that the Learned trial Judge did sum up to the assessors and 
made notes as required under the law. There is, however, some merit in 
the complaint that the learned trial Judge appears not to have directed the 
assessors in his summing up on the issue of corroboration in sexual 
matters nor does he refer to this matter in his judgment but for the 
reasons already appearing in this judgment we find that there was no 
miscarriage of justice as a result of the omission. Ground 5 must 
therefore fail. 
In ground 4 the appellant complained that his alibi was not properly dealt 
with. We find no substance in this ground. We already referred to the 
learned trial Judge's finding on this issue which on the evidence we are 
unable to fault. 
Ground I and 6 are really different aspects of the same point relating to 
insufficiency of the evidence to sustain the conviction. We find that the 
learned trial Judge properly weighed the evidence before him came to the 
correct decision subject to our remarks regarding corroboration in sexual 
matters. Accordingly the appeal against conviction is dismissed. 
The appeal against the sentence of corporal punishment is, quite rightly 
in our view, conceded by Mr. Okwanga, Counsel for the respondent. 
Section 123 (1) of the Penal Code does not provide for any corporal 
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" 

punishment. We dealt with this matter in detail in the recent cases of 
Jackson Zita v. Uganda Criminal Appeal 19 of 1995 and Bimbi Peter v. 
Uganda Criminal Appeal 33/94 both 'unreported'. 
We accordingly allow the appeal against the sentence of six strokes of the 
cane and set it aside. 
Dated at Mengo this .... 18th ... day of ... July .. .l997. 
S.W.W. WAMBUZI 
CHIEF JUSTICE. 
A.H.O.ODER 
JUSTICE OF THE SUPREME COURT 
A.N. KAROKORA 
JUSTICE OF THE SUPREME COURT. 
I CERTIFY THAT THIS A 
TRUE C 	F HE ORIGINAL 
, ~, 
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