THE REPUBLIC OF UGANDA
IN THE COURT OF APPEAL OF UGANDA AT KAMPALA
HON. JUSITCE A. TWINOMUJUNI, JA
JUSTICE S.B.K. KAVUMA, JA
JUSITCE A.S. NSHIMYE, JA
CRIMINAL APPEAL NO.105 OF 2009
V E R S U S
[Appeal from the judgment of
the High Court at Kampala (Katutsi, J)
dated 8th April 2009 in Criminal Case No.1254 of 2008]
J U D G M E N T O F T H E C O U R T:
This is an appeal from the judgment of the High Court of Uganda in
which the appellant was convicted of Embezzlement and Forgery
sentenced to 10 years imprisonment. The undisputed evidence which
was adduced by the prosecution and believed by the trial
that the appellant floated a company called Uganda Centre for
Accountability (UCA). It was a Company Limited by guarantee.
The appellant was a sole Managing Director in the Company and the
Sole signatory of its Bank Account. He was also the sole operator
the Company Account No.500371005 kept at Crane Bank Ltd. His wife
ANNET KAIRABA and GEOFFREY NKURUNZIZA (PW2) were the other
of the Company. The wife was also the Company Secretary.
The company through Annet Karaba and Geoffrey Nkurunziza applied for
funds from Global Fund For AIDS, TB and Malaria Project for
monitoring HIV/AIDS activities in the Districts of Rakai, Kabale,
Mbarara and Ntungamo. The Company was granted the award in the
of UG.Shs.120,000,000/= (One hundred and twenty million only). The
purpose of the money was to implement the following activities:
Develop monitoring mechanism in Rakai, Kabale, Mbarara and Ntungamo
Train identified personnel.
Carry out visits to the Districts and delivery sites.
Hold fact finding workshops.
Carry out field monitoring exercises.
The money was deposited in Company account on 13th March
2005 and on 19th March 2005 the appellant withdrew
Ug.shs.96,000,000/= (Ninety six million only). Within the next 19
days the account was empty.
All the funds were withdrawn by the
appellant from the account.
The prosecution also adduced evidence showing that the appellant or
his company did not carry out even a single activity that they
contracted to carry out. Instead the appellant instructed the
Company Director Geoffrey Nkurunziza to prepare forged documents
an attempt to account for the funds. All such documents were found
to be false and forged. The trial judge believed the prosecution
case and convicted the appellant of Embezzlement and Forgery and
sentenced him as aforesaid. The appellant did not make any defence
nor did he adduce any evidence. He was not satisfied with the
conviction and sentence, hence this appeal.
The Memorandum of Appeal contains eight grounds of appeal as
The learned trial judge erred in law and fact in holding that the
accused received Ugx120,000,000 (Uganda shillings One hundred
Twenty Million) from the Global Fund to Fight Malaria, Tuberculosis
The learned trial judge erred in law and fact by admitting and
relying on the uncorroborated evidence of an accomplice to convict
the accused of embezzlement and forgeries.
The learned trial judge erred in law when he admitted and relied
on the evidence of a confessed liar.
The learned trial judge erred in law in shifting the burden of
proof from the prosecution to the accused.
The learned trial judge erred in law and fact when he failed to
properly evaluate the prosecution’s evidence.
The learned trial judge erred in law and fact by holding that the
prosecution’s case was proved beyond reasonable doubt.
The learned trial judge erred in law and fact in holding that the
accused had forged the documents the subjects of the counts of
The learned trial judge erred in law and fact when he sentenced
the appellant to ten (10) years for embezzlement and three (3) years
on each count of forgery, which sentences are harsh and excessive in
the circumstances of the case.
At the trial of the appeal, the appellant was represented by Mr.
Peter Kabatsi assisted by Ms Aisha Kawola while Ms Josephine
Namatovu, a Senior State Attorney, represented the respondent.
Mr. Kabatsi indicated that he would argue ground one of the appeal
separately, grounds 2, 3, 4, 5 and 6 together and grounds 7
each separately. We propose to deal with the grounds in the same
Mr. Kabatsi conceded that the appellant was a Director of the
Company. He submitted that what was disputed was whether he stole
the money in question or not. He submitted that the prosecution had
That the money was stolen.
That the appellant had converted it to his own use.
He submitted that the prosecution had miserably failed to prove that
the company had lost any money as it did not call any evidence
that effect. The burden was on the prosecution to prove beyond
reasonable doubt that the company had lost money.
Mr. Kabatsi submitted further that, there can never be larceny
without conversion to one’s own use of the money. In his
the prosecution failed to prove that the appellant had converted the
money to his own use. He relied on the cases of R vs
Development  1 ALL.ER. 602, Nassolo vs Uganda  1 EA 182
and Henry Isiko vs Uganda SCCA 4 of 2003 to
support his arguments. In conclusion on this ground Mr. Kabatsi
called upon us to allow this appeal, not because the prosecution
produced inadequate evidence but because the prosecution adduced no
evidence at all to prove allegations on this ground of appeal.
In reply, Ms. Namatovu submitted that the prosecution had proved its
case against the appellant beyond any reasonable doubt. The
prosecution had by direct evidence proved that:-
The appellant was a Director of a Company.
That he stole the Company money.
That he had access to the money by virtue of his employment.
Ms Namatovu pointed to a number of prosecution witnesses whose
evidence could only lead to one conclusion that the appellant had
stolen the money he drew from the Company account.
We have carefully studied and evaluated all the evidence that was
before the trial judge on this issue. It proves the following
The appellant was the Managing Director and the Sole Bank account
signatory for the Company called Uganda Centre for Accountability
The Company solicited and obtained from Uganda Government Ug.
Sha.120,000,000/= to carry out HIV/AIDS, TB and Malaria related
activities on behalf of the Government.
The money was deposited on the Company account No.500371005 to which
only the appellant was the sole signatory.
The money was withdrawn by the appellant during the month of March
and April 2005.
The appellant and his Company did not do anything whatsoever in
Rakai, Mbarara, Kabale and Ntungamo Districts towards the fulfilment
of his contractual obligation entered into by the Company with the
Ministry of Health on 10th February 2005.
It is only the appellant who withdrew the money from the bank who is
in position to tell us what happened to the money.
At the trial in the High Court, the appellant was given opportunity
to tell the people of Uganda what happened to the money. He
to keep quiet. That of course, was his constitutional right but the
right is not absolute as it is fettered by section
105 of the
Evidence Act which provides:-
“When a person is accused of any offence……….
the burden of proving any fact especially within the knowledge of
that person is upon him or her, ….”
In the instant case, the prosecution proved beyond reasonable doubt
that the appellant withdrew the money in question from his
account. It is incumbent upon him to tell us where the money went
since the matter is especially within his knowledge.
appellant missed the opportunity in the High Court to explain what
happened to the money, his Lordship Justice John
“Now the question is: where is the money? Is it reasonable
to suppose that the accused who was the sole operator of UCA account
does not know where the money went?”
His Lordship then concluded:-
In my humble judgment, it is not only unreasonable, but it is also
ridiculous to suggest that the accused does not know where the
It went into his own stomach and to use the language of section
268(b) of the Penal Code Act, he embezzled it. The evidence may
be said to be circumstantial. It no derogation of evidence to say
that it is circumstantial. Witnesses may tell lies, circumstances
well interpreted cannot. In full agreement with the opinion of the
gentlemen assessors, I have no hesitation in finding the
accused guilty and convict him as charged on Count 1.”
Mr. Kabatsi also submitted that the appellant should not have been
convicted of the offence of embezzlement because the Company
Uganda Centre for Accountability (UCA) has never complained that it
had lost any money and therefore there was no proof of
at all. With respect to learned counsel, this argument cannot stand.
It is apparent from the evidence on record
that the appellant
floated the company for the sole purpose of embezzling any funds
destined to it. He made himself the Chief
Executive Officer of the
Company. He made himself the sole signatory to its bank account.
The other two Directors of the Company
were his wife, Annet Keiraba
and his accomplice, Geoffrey Nkurunzinza (PW2). There is no way the
appellant could have reported
the theft of the company’s money
when it was stolen by himself. Moreover, the money he stole was not
really the company’s
money. It was public money under the
control of the Ministry of Health. The appellant and his company had
an obligation to account
for the money. When the accountability
failed, the Government instituted an inquiry which found that the
appellant had embezzled
the money. That’s how this prosecution
began. It was the Ministry of Health which complained. The
was incapable of complaining. This
submission has no merit.
GROUNDS 2, 3, 4, 5 AND 6
On these grounds of appeal, Mr. Kabatsi raised four main complaints
against the decision of the trial court:-
That there was no evidence on record to prove forgery on the part of
That PW2, Jeffery Nkurunziza, upon whose evidence the trial judge
relied to convict on these counts, was an accomplice who should
have been believed.
That the evidence PW2 was never corroborated as required by law.
That the trial judge shifted the burden of proof on to the
We propose to deal with these complaints one by one separately.
NO EVIDENCE OF FORGERY:
Mr. Kabatsi complained that at the trial, the documents he referred
to as exhibit P5 were never tendered in evidence. They were
shown to the witness PW2 for identification but were not eventually
exhibited as they should have. The consequence, according
was that they do not form part of the record and therefore, are not
evidence against the appellant.
During the trial in the High Court, the prosecution called the
evidence of PW2 Nkurunziza. He testified that all the money which
had been given to their Company was withdrawn by the appellant alone.
It was never used for the purpose for which it was given.
attempt to account for the money, the appellant gave him receipts to
fill showing that the Company had used the money for
e.g. accommodation, fuel e.t.c. which he prepared under the
instructions and supervision of the appellant. This
identified the documents including exhibit P5. Since he was the one
who had prepared them, the documents were accepted
in evidence and
marked as part of the record of proceedings. During his submissions
in the High Court, Mr. Kabatsi acknowledged
that eight receipts (Part
of Exhibit P5) were on record but his only complaint was that it was
never proved that they were forged
by the appellant.
With respect to learned counsel for the appellant, we are surprised
that he now submits that the documents never became part of
proceedings. On close scrutiny of the record, we are satisfied that
all the documents upon which the charge of forgery was
identified by PW2 and tendered in evidence by him. The court rightly
accepted them since it is the witness who had
As to whether this evidence implicated the appellant in the forgery,
this is how the trial judge handled the issue:-
“I now turn to the group of counts charging the accused with
Forgery c/s 342, 347 and 19(2) of the Penal Code Act. Section 342
the offence of Forgery as the making of a false document with
intent to defraud or to deceive. Section 345(a) provides that a
person makes a false document who makes a document purporting to be
what in fact it is not.
To defraud is to deceive by deceit and to deceive is to induce a
man or woman to believe that a thing is true which is false. Shortly
put, to deceive is by falsehood to induce a state of mind to defraud
is by deceit to induce a course of action. R.V WINES  2 ALL
E.R. 1497. Here in above I have given a graphic account of how
exhibit P5 was false. Those documents told lies about themselves and
intended to defraud and deceive PMU (Programme Management Unit).
I have here in above commented on the involvement of PW2 Nkurunziza
Jeffrey. He testified that he prepared those documents on the
instructions of the accused.
Herein above I have said why I believe his evidence without an
iota of hesitation. Section 19(2) of the Penal Code Act enacts as
here under following:
‘2. Any person who procures another to do or omit to do
any act of such a nature that if he or she had done
act or made the omission the act or omission would have
an offence on his or her part is guilty of
an offence of the same kind…..”
A procurer uses the hands and eyes of the person procured to
commit a crime as his own. The actions of the person procured become
the action of the procurer. In fact the section says, not merely
that a person who procures another to commit an offence may be
convicted of the offence but that “he or she may be charged
with doing the act or making the omission”. In my humble
opinion citing section 19(2) of the Penal Code Act in the indictment
was superfluous. Mentioning the act of procuring in the particulars
of the offence in my opinion would suffice.”
The learned trial judge believed the evidence of PW2 Nkurunziza. The
“Nkurunziza Jeffrey PW2 testified that he prepared these
documents on the instruction of the accused. I subjected the
of this witness while in the witness box. He gave his
evidence in a straightforward manner without prevaricating. He gave
for accepting to be used as a robot.”
Once his evidence was believed, and the trial judge was entitled to
do so, the evidence implicated the appellant in forgery of
of documents in an attempt to account for the money his Company
received from the Ministry of Health.
THAT PW2 WAS AN ACCOMPLICE AND NON-CORRABORATION OF HIS EVIDENCE.
The competence of an accomplice as a witness in criminal trials is
well settled. Section 132 of the Evidence Act states:-
“An accomplice shall be a competent witness against an
accused person; and a conviction is not illegal merely because it
upon the uncorroborated testimony of an accomplice.”
There is no doubt that PW2 was an accomplice. But he was competent
to give evidence against the appellant. The trial judge put
evidence under scrutiny and having observed his demeanour as he gave
evidence, found him to be a truthful witness. There is
a lot of
witness and circumstantial evidence showing that the money the
appellant’s company received did not do what it was
for. It was natural that an attempt to account for it would be made.
Since the money was gone, forgery was the easiest
The evidence of PW2 and PW3 is very categorical on this issue. The
trial judge and gentlemen assessors believed
all this evidence. We
think that the evidence of PW2 and PW3 was credible and there was
more than sufficient evidence to corroborate
their evidence. There
is no merit in these complaints.
THAT THE TRIAL JUDGE SHIFTEED THE BURDEN OF PROOF
After the learned trial judge read the judgment in which he found the
appellant guilty, he considered the sentence and under
“SENTENCE AND REASONS FOR THE SAME” he observed:-
“The number of cases that are reaching our court seem to
suggest, unfortunately that this type of crime “pays”.
What is more alarming is that this type of crime is being
committed with impunity! How do we explain the mentality of a man,
in order to account for the money received, states that he
transported people on a caterpillar wheel loader! That a caterpillar
wheel loader that uses diesel this time was using petrol! Is this
stupidity or impunity? Again how do we explain the mentality
man against whom there is evidence that he received money, and that
in a bid to account for the money received used forged
who beats his chest and says: ‘there is no case
against me. Do what you can, I will say nothing!” if
this is not impunity, then what else can it be?”
Mr. Kabatsi complained that this observation was prejudicial to the
appellant because the trial court should not have adversely
on the exercise of the appellant’s right to silence.
With respect to learned counsel for the appellant, we think this
argument is misconceived. First, we have already pointed out
the right to silence is not absolute. Under section 105 of the
Evidence Act, the appellant had the burden to prove any fact
especially and exclusively within his own knowledge. Whatever
happened to the money he drew from his Company’s account was
exclusively within his knowledge. The trial judge was in order to
comment about his failure to discharge that burden and to do
Secondly, the learned trial judge made his observation after the
conviction of the appellant. There is no evidence that he took
observation into account in arriving at the conclusion that the
appellant was guilty of the offence charged. The observation
trial court did not in any way prejudice the appellant. We find no
merit in this complaint.
Finally, we have considered the arguments of counsel on both sides on
whether the sentences passed on the appellant were excessive
We think the offences committed by the appellant were very serious
indeed. The appellant may have been a first offender,
but given that
he was a public officer, holding a very high responsibility as
Director for Economic Monitoring in the Office of
being entrusted with the duty, among other things, to fight
corruption, he should have been the very last person
to engage into
the type of criminal activities he was convicted of. He should have
led by example. We think the sentences of
10 years and 3 years were
on the lower side. We are content, however, to leave the matter as
the learned trial judge, in his wisdom,
found suitable. We also
uphold the order for compensation.
In the result, we find no merit in this appeal which we dismiss
accordingly. The conviction and sentences of the lower court are
upheld. Bail granted to appellant by this court is hereby cancelled.
He should proceed to serve his sentence.
Dated at Kampala this …20th …day
Hon. Justice A. Twinomujuni
JUSITCE OF APPEAL.
Hon. Justice S.B.K. Kavuma
JUSTICE OF APPEAL.
Hon. Justice A.S. Nshimye