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Uganda v Kajuma & 2 Others (Criminal Appeal 153 of 2021)

Court of Appeal · [2024] UGCA 320 · 2024 Appeal Allowed ✦ AI-generated summary ↓ Download
Jurisdiction
Uganda
Case Type
Second criminal appeal by the State from the High Court's appellate decision acquitting the respondents
Decision
State appeal allowed; High Court acquittals set aside; trial Magistrate's convictions and 2-year sentences restored; 1st and 2nd Respondents ordered to refund UGX 311,020,000 and UGX 84,980,000 respectively.

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Holding

The Court of Appeal held that although a second appeal under section 45(1) of the Criminal Procedure Code Act lies only on a matter of law, the question whether a first appellate court was justified in reversing the trial court's findings of fact is itself a point of law, which obliged the court to reappraise the evidence. Reappraising it, the court found the High Court Judge had failed to properly evaluate the evidence and wrongly acquitted the respondents, who had jointly defrauded the complainant of UGX 396 million in a sham land sale using a title in the name of a deceased, non-existent vendor. The State's appeal was allowed, the acquittals set aside, and the trial Magistrate's convictions, sentences and refund orders restored.

Facts

The complainant, Benson Bityo, paid UGX 396 million for land in Hoima District after the 1st and 2nd Respondents, Kajuma Edward and Nebba Irumba, told him land was available and showed it to him. The certificate of title was in the name of Dinah Kahwerire, said to be the bedridden owner, in whose names the 3rd Respondent, Komweru Rosemary, signed as vendor. Payments were deposited into Kajuma's bank account. After the title was transferred into Bityo's name, he could not gain possession because the land actually belonged to a neighbour, Yosam Kubalikenda, and Kahwerire Dinah was found never to have existed, having in fact died around 1999, long before the transaction. Evidence showed Kajuma facilitated the sale knowing Kahwerire was dead, Nebba authored and benefited from the fraudulent transaction (receiving sums including UGX 70 million used to buy a lorry), and Komweru passed herself off as the deceased Kahwerire by signing documents and a letter asserting ownership, confirmed by a forensic document examiner.

Issues

  1. Whether the Court of Appeal, as a second appellate court under section 45(1) of the Criminal Procedure Code Act, had jurisdiction to entertain the appeal where the State challenged the first appellate court's evaluation of the evidence.
  2. Whether the first appellate Judge erred in law by failing to properly evaluate the evidence and consequently acquitting the respondents of obtaining money by false pretence.

Orders

  • The respondents' objection to the jurisdiction of the court is overruled.
  • The State's appeal is allowed.
  • The decision of the High Court acquitting the respondents of obtaining money by false pretence is set aside.
  • The decision of the trial Magistrate convicting the respondents is restored.
  • The sentences of 2 years' imprisonment each imposed by the trial Magistrate are restored, to run from the date of this judgment.
  • Kajuma Edward (1st Respondent) and Nebba Irumba (2nd Respondent) shall refund UGX 311,020,000 and UGX 84,980,000 respectively to Benson Bityo.

Key headnotes

Criminal Procedure — Second Appeals — Jurisdiction under section 45(1) Criminal Procedure Code Act
A second appeal from the High Court's appellate decision lies only on a matter of law, but where the first appellate court reverses the trial court's findings of fact, whether that reversal was justified is itself a question of law, entitling the second appellate court to examine and reappraise the evidence.
Criminal Procedure — First Appellate Court — Duty to Re-evaluate Evidence
Where the first appellate court fails to wholly re-evaluate the evidence and its failure occasions a miscarriage of justice, the second appellate court is under a duty to reappraise the evidence in order to correct that error.
Criminal Law — Obtaining Money by False Pretence — Elements
To prove obtaining money by false pretence there must be a misstatement of an existing fact made by the accused, false to the accused's knowledge, which acted upon the mind of the person who parted with the money, the accused having acted fraudulently.
Criminal Law — Principal Offenders — section 19 Penal Code Act
Under section 19 of the Penal Code Act every person who does the act constituting the offence, or who aids, abets or enables another to commit it, is a principal offender and equally guilty, whatever the mode or nature of the participation.

Legislation cited (13)

  • Penal Code Act s.305
  • Penal Code Act s.390
  • Penal Code Act s.381(1)
  • Penal Code Act s.312
  • Penal Code Act s.304
  • Penal Code Act s.19
  • Criminal Procedure Code Act s.45
  • Criminal Procedure Code Act s.35
  • Criminal Procedure Act s.331(1)
  • Civil Procedure Act s.72(1)(a)
  • Judicature (Mediation) Rules 2013 rule 16
  • Judicature (Mediation) Rules 2013 rule 18
  • Court of Appeal Rules rule 2

Cases cited (18)

  • Kifamunte Henry v Uganda
  • Pandya v R [1957] EA 336
  • Bogere Moses v Uganda & Another (Supreme Court Criminal Appeal No. 1 of 1997) [1998] UGSC 22
  • Okeno v Republic [1972] EA 32
  • Charles B. Bitwire v Uganda (Supreme Court Criminal Appeal No. 23 of 1985)
  • Kairu v Uganda [1978] HCB 123
  • Shah v Aguto [1970] EA 263
  • Fazelabbas Sulemanji v Reg (1955) 22 EACA 395
  • Merali v Uganda [1963] EACA 647
  • Lubanga Jamada v Dr Ddumba Edward (Court of Appeal Civil Appeal No. 10 of 2011)
  • Nalukenge Mildred v Uganda (Court of Appeal Criminal Appeal No. 67 of 2008)
  • P.C Wabwire Anthony v Uganda (Criminal Appeal No. 152 of 2009)
  • Baingana Paul v Uganda (Criminal Appeal No. 8 of 2010)
  • R v Hassan bin Said [1942] 9 EACA 62
  • Mohamed Ali Hasham v R (1941) 8 EACA 98
  • Gwolo Jackson v Uganda (High Court Criminal Appeal No. 14 of 2014)
  • R v Sullivan (1945) 30 Cr App R 132
  • Uganda v Oloya s/o Yovan Oweka [1977] HCB 4
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.