Wakilii

Uganda v Kisembo & 2 Ors (Criminal Appeal No. 69 of 2015)

Court of Appeal · [2019] UGCA 181 · 2019 Appeal Dismissed ✦ AI-generated summary ↓ Download
Jurisdiction
Uganda
Case Type
First criminal appeal by the prosecution against acquittal in the Anti-Corruption Court
Decision
Appeal dismissed; acquittals of the three respondents upheld

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Holding

The Court of Appeal dismissed the prosecution's appeal against the acquittal of three district officials charged with causing financial loss, neglect of duty and abuse of office over lost Community Driven Development (CDD) funds. The Court held the respondents' use of a SACCO as financial intermediary was logical and legal under the CDD guidelines (exhibit D6), as Nakapiripirit district had no bank, and that the Memorandum of Understanding cushioned the groups from loss. There was no evidence the respondents knew or had reason to believe their acts would cause financial loss; the offence ingredients were not established. The Court also noted the indictment particulars in counts 1 and 3 were contradicted by the evidence, and the prosecution's grounds failed to track the offence ingredients.

Facts

In the 2010/2011 financial year, Nakapiripirit District Local Government (NDLG) received Community Driven Development (CDD) funds from the World Bank and Government for disbursement to community groups. The CAO (1st respondent) tasked the Commercial Officer (A4) to verify viable financial intermediaries. A4 recommended Nakapiripirit Teachers SACCO, and a Memorandum of Understanding governed disbursement. Sub-counties transferred funds to the SACCO. Of UGX 115,000,000 transferred to the SACCO, UGX 88,480,000 was unaccounted for, with six sub-counties failing to receive their funds. The matter surfaced when A4, the sole signatory to the SACCO account, reported being robbed of UGX 50,000,000. The four officials were charged. The Anti-Corruption Court convicted A4 of embezzlement and abuse of office but acquitted the three respondents (CAO, Head of Finance and Deputy CAO) of causing financial loss, neglect of duty and abuse of office. The prosecution appealed the acquittals.

Issues

  1. Whether the offences of causing financial loss, neglect of duty and abuse of office could be proved without evidence from the Ministry of Local Government supervising the respondents.
  2. Whether the respondents' direction to use the Nakapiripirit Teachers SACCO as financial intermediary was justified under the CDD guidelines.
  3. Whether the respondents had knowledge or reason to believe their acts or omissions would cause financial loss.
  4. Whether the trial Judge properly evaluated the evidence in acquitting the respondents.

Orders

  • Appeal dismissed on all four grounds.
  • The decisions of the trial Judge upheld.

Key headnotes

Corruption Offences — Causing Financial Loss — Ingredient of Knowledge
To establish the offence of causing financial loss, the prosecution must prove that the accused, being a government employee, in the performance of his duties did an act knowing or believing it would cause financial loss; absent evidence of such knowledge or belief, the offence is not made out.
Indictment — Defective Particulars — Variance with Evidence
Where the particulars of a count allege a transfer of funds in a manner contradicted by the prosecution's own evidence, the count fails on the indictment itself, and arguments on appeal attached to such a defective count have no foundation.
Submissions from the Bar — Cannot Discredit Sworn Evidence
Counsel's submissions amount to giving evidence from the bar and cannot discredit sworn evidence on factual issues.
First Appellate Court — Duty to Reappraise Evidence
A first appellate court must review or rehear the evidence, consider all material before the trial court and reach its own conclusions on the facts, while giving due regard to the trial court's advantage in observing witnesses.
Grounds of Appeal — Must Track Offence Ingredients in Criminal Matters
In criminal appeals, grounds of appeal should be framed according to the offences in the counts charged and according to proof of the ingredients of those offences, not as in a civil appeal.

Legislation cited (6)

  • Constitution of Uganda Article 164(2)
  • Local Government (Financial and Accounting) Regulations 2007 reg.9
  • Local Government (Financial and Accounting) Regulations 2007 reg.11
  • Micro Finance Deposit Taking Institutions Act 2003 s.2
  • Anti-Corruption Act
  • Judicature (Court of Appeal Rules) Directions SI 13-10 r.30(1)(a)

Cases cited (4)

  • Hudson Jackson Andua and Another v Uganda (Criminal Appeal No. 17 of 2016)
  • Kassim Mpanga v Uganda (Criminal Appeal No. 30 of 1994)
  • Wilson Nyanga Kizito V Uganda [1997] II KALR 11
  • Kifamunte Henry v Uganda (Criminal Appeal No. 10 of 1997)
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.