“With the basis of the evidence that remained on record, it goes without saying that the prosecution
proved the case against the appellant beyond reasonable doubt. The appeal cannot succeed. It is
dismissed in its entirety,” Justices Nathalia Kimaro, Stella Mugasha and Richard Mziray declared.
In faulting the judgement of the High Court, Tunugu, the appellant, had advanced several grounds,
alleging that the two courts below erred to find that he was properly identified and that they had relied
on the contradicting prosecution witnesses.
Justices ruled that the appellant was properly identified by the prosecution witnesses, as it was testified
that prior to the rape incident, Tunugu, who was known to them had visited the victim’s hut and talked
to them before moving her away.
“With this evidence and the fact that at the material time there was moonlight, the question of mistaken
identity ca not arise,” they concluded. Regarding the contradictions, the justices said that it was true the
existence of contradictions and inconsistencies in the evidence of a witness is a basis for a finding of lack
of credibility.
However, they said, the discrepancies must be sufficiently serious and must concern matters that are
relevant to the issue being adjudicated to warrant an adverse finding.
“Minor contradictions and inconsistencies on trivial matters which do not affect the case of the
prosecution should not be made a ground on which the evidence can be rejected on its entirety,” the
judges said.
According to the justices, the witnesses narrated how the appellant visited them and asked the victim to
follow him to collect her money, whereupon she obliged and on the way the appellant raped her.
Facts of the case show that on October 9, 2005, the victim together with her daughter was together at
the latter’s hut situated at Katumba refugee settlement residence. While there, at around 8.00pm, the
appellant visited them.
On his arrival, the appellant asked the victim if he could escort her somewhere to collect her money of
300/-. Upon hearing that the daughter intervened and asked the appellant why is he taking her mother at
night and who will bring her back. The appellant responded quickly promising to bring her back.
When the daughter got assured of the safety of her mother, the appellant and the victim moved away to
collect the money. But after several paces, the appellant got hold of the old woman’s neck and
threatened to stub her with a knife in the event she raised an alarm.
The appellant managed to drag her down; he undressed her and raped the victim while grabbing her by
the neck. By coincidence, a man passed nearby and heard someone screaming.
The man walked to the direction and found the appellant “infragrante delicto-in action” ravishing the old
woman. With that intervention, the appellant stood up and took to his heels.
The man ran after him and luckily he apprehended him holding a knife. The appellant was subsequently
charged accordingly. The appellant denied to have committed the offence by simply narrating as to how
he was arrested by militia people in connection with the alleged offence.
