John s/o Okello v. R., H.C. Crim. App. 167-M-72, 11/8/72.

John s/o Okello v. R., H.C. Crim. App. 167-M-72, 11/8/72.

Held:   To suggest sexual intercourse with a woman and, on her refusal, to hold her tightly around the waist and to pull her, struggling, towards a vacant house, taking away her khanga and tearing her dress in the process, amounts to an indecent assault.

 EL-KINDY, J. – The appellant, JOHN S/O OKELIO, was charged with an convicted of indecent assault contrary to section 135 (1) of the Penal Code, Cap. 16 and he was sentenced to imprisonment for 18 months subject to confirmation by the High Court. He was also ordered to pay Shs. 15/- to the complainant (P.W.1). He appealed against conviction, sentence and order. Pelina (P.W.1) alleged that on the 6^th of February, 1972, at about 4 p.m., she was walking along a road in her village. There were 4 Ruandese people ahead of her. As she walked, she met the appellant. She said that the appellant held her had and told her that he loved her and proposed sexual intercourse, with her, but she refused. She was a married woman. The appellant then produced a currency not of Shs. 5/- and offered it to her, but she still refused. Thereupon, she said, the

appellant held her tightly around her waist and began to pull her towards a vacant house. She wore a dress on which she wore a piece of khanga. In the course of the struggle, she said, the appellant took away her khanga and tore her dress, but her cries of help caused the four Ruandese and Henry s/o Kiiza (P.W.3) to go to her aid. She alleged that the appellant left her and ran into a house, where he locked himself in. The boy Henry (P.W.3), who gave sworn evidence, said that he saw the appellant pulling away the complainant, and that he went to her aid together with the four Ruandese, and then the appellant left the woman alone. Henry’s evidence was properly admitted, and therefore, it supplied the required corroboration on the evidence of Pelina. Pelina said that tit was the first time she met the appellant and that she had not seen him before. In his defence, he said that Pelina, Henry and the husband of Pelina gave false testimony against him, and that they had been told by one Gordon to do so as he had had a previous quarrel with Gordon, who promised to see him committed to prison. The learned trial magistrate considered the allegation and found that he allegation of conspiracy had no basis. He found that it was the first time that Pelina met him and that the appellant had no previous quarrel with Pelina and Henry. He found that they were witnesses of truth, and he accepted their evidence.

            Having found the facts as alleged by Paulina and Henry, the learned magistrate quite properly, wet on to consider whether the facts as proved amounted to indecent assault. In this respect, he relied on the judgment of my learned brother Mnzavas, Ag. J., as he then was, in the case of R. v. SHABANI (1971) H.C.D. n. 233. He held that the holding tightly of the complainant around her waist coupled with the suggestion of love and sexual intercourse, amounted to indecent assault in law. And, with respect, I agree with him.

            In passing the sentence of 18 months, the learned trial magistrate took into account the fact that it was an indecent assault on “a respectable house-wife”, and that he had threatened to cut the cell leader with a panga, when the cell leader approached him. His conduct, therefore, he said was equally dangerous. He could, as well, have taken into account the fact that he appellant had caused the complainant physical pain when he held her tightly around her waist or stomach. Although the sentences appear to me to be severe, it is not so severe as to warrant this court to interfere with it. It is accordingly confirmed. The appellant was also ordered to pay Shs. 15/- for loss of property. Presumably the learned trial magistrate acted under the provisions of section 176(1) of the Criminal Procedure Code, Cap. 20. There was evidence which showed that when appellant released Pelina, he disappeared with her piece of khanga. It was, therefore, only fair that he should compensate her. The order is upheld. I certify that

This appeal has been lodged without sufficient cause for complainant and I order that it be summarily rejected.