Wakilii

Kenneth Kaawe v Uganda (Criminal Appeal 12 of 2021)

Supreme Court · [2023] UGSC 83 · 2023 Appeal Dismissed ✦ AI-generated summary ↓ Download
Jurisdiction
Uganda
Case Type
Second criminal appeal to the Supreme Court from a Court of Appeal decision affirming a High Court conviction for embezzlement
Decision
Appeal dismissed; the conviction for embezzlement and the order to refund US$50,000 to United Bank of Africa were affirmed.

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Cited — treatment unverified cited in 1 (treatment unverified) Derived from citing cases in the Wakilii corpus — not an assertion that this case is good law.

AI-generated summary. This summary was generated by AI from the full text of the judgment. It may contain errors or omissions — always read the source judgment before relying on it.

Holding

On a second criminal appeal confined to points of law under s.5(2) of the Judicature Act, the Supreme Court held that the Court of Appeal had properly discharged its duty as first appellate court, subjecting the evidence to fresh and exhaustive scrutiny and reaching concurrent findings supported by credible evidence, which a second appellate court cannot reopen. On the compensation order, whether the bank had been indemnified by insurers was an untried question of fact that could not be raised on second appeal; and in any event, applying Parry v Cleaver, insurance money cannot be taken into account to reduce a wrongdoer's liability. Both grounds were dismissed and the appeal failed.

Facts

The appellant was employed as Head of Central Cash at United Bank of Africa (UBA). On 13 July 2009, US$50,000 in cash-in-transit was conveyed from the William Street branch to the head office on Jinja Road. Under the bank's dual-control regulations, the appellant was required to receive and sign for such money together with a co-signatory, Carol Nakabembwe (PW4). The sealed crate was handed to the appellant by the cash-in-transit officer (PW3); the appellant received and opened it and signed the delivery notes and cash-in-transit forms acknowledging receipt, doing so alone and without PW4, in breach of the dual-control rule. The money was later discovered missing. When PW4 raised the loss with the appellant, he indicated he would speak to someone and asked her to check the lodgement file; he then resigned and switched off his phones until arrest. A handwriting expert (PW9) confirmed the appellant signed the acknowledgement forms. He was tried and convicted of embezzlement in the High Court, sentenced to eight years' imprisonment and ordered to refund US$50,000.

Issues

  1. Whether the Court of Appeal, as first appellate court, failed in its duty to re-evaluate the evidence on record before upholding the appellant's conviction for embezzlement.
  2. Whether the Court of Appeal erred in law in upholding the compensation order, given the appellant's contention that the victim bank had been indemnified by its insurers.

Orders

  • Both grounds of appeal dismissed.
  • Appeal dismissed.
  • Conviction for embezzlement upheld.
  • Compensation order of US$50,000 to United Bank of Africa affirmed.

Key headnotes

Criminal Procedure — Appeals — Duty of first appellate court to re-evaluate the evidence
A first appellate court has a duty to review and reconsider the whole of the evidence before the trial judge and to reach its own conclusions, while remembering that, unlike the trial court, it did not see the witnesses; where credibility turns on manner and demeanour the appellate court must be guided by the impressions made on the judge who saw them, save where other circumstances show whether a statement is credible.
Criminal Procedure — Second appeals — Jurisdiction confined to points of law; concurrent findings of fact
On a second appeal to the Supreme Court from an offence not punishable by death, an appeal lies on a matter of law only under s.5(2) of the Judicature Act; the Court may re-evaluate the evidence and interfere with the concurrent findings of fact of the lower courts only where the Court of Appeal failed in its duty as first appellate court or where the findings are not supported by competent evidence.
Evidence — Circumstantial evidence — Test for conviction
Where a case depends exclusively on circumstantial evidence, the inculpatory facts must be incompatible with the innocence of the accused and incapable of explanation upon any reasonable hypothesis other than guilt, and the court must be satisfied that there are no co-existing circumstances that would weaken or destroy the inference of guilt.
Damages — Collateral benefits — Insurance indemnity does not reduce a wrongdoer's liability
Insurance money received, or potentially received, by a victim cannot be taken into account to reduce the compensation or damages payable by a wrongdoer; a wrongdoer must not benefit from the victim's prudence in insuring against the loss, the benefit of the premiums having been bought by the insured and not the tortfeasor.
Criminal Procedure — Compensation orders — Section 126 Trial on Indictments Act
A compensation order under s.126 of the Trial on Indictments Act is a discretionary order, in addition to any lawful punishment, that may follow a conviction where the evidence shows that some person suffered material loss or personal injury in consequence of the offence; whether the victim was separately indemnified by insurers is a question of fact requiring evidence at trial and cannot be raised for the first time on a second appeal.

Legislation cited (7)

  • Anti-Corruption Act 2009 (Act No. 6 of 2009) s.19(b)(ii)
  • Judicature Act (Cap 13) s.5
  • Judicature Act (Cap 13) s.5(2)
  • Judicature Act (Cap 13) s.5(1)(a)
  • Trial on Indictments Act s.126
  • Trial on Indictments Act s.126(1)
  • Judicature (Court of Appeal Rules) Directions rule 30(1)(a)

Cases cited (15)

  • Henry Kifamunte v Uganda (Criminal Appeal No. 10 of 1997)
  • Mulindwa James v Uganda (Criminal Appeal No. 23 of 2014)
  • Bireete Sarah v Uganda (Criminal Appeal No. 1 of 2016)
  • Kazarwa Henry v Uganda (Criminal Appeal No. 17 of 2015)
  • Katende Semakula v Uganda (Criminal Appeal No. 11 of 1994)
  • Bogere Moses v Uganda (Criminal Appeal No. 1 of 1997)
  • Bogere Charles v Uganda (Criminal Appeal No. 10 of 1998)
  • Simoni Musoke v R [1958] 1 EA 715 (CAK)
  • Teper v R [1952] AC 480
  • R v Mohamed Ali Hasham (1941) 1 EACA 93
  • Castellain v Preston (1883) 11 QBD 380
  • Parry v Cleaver [1969] 1 All ER 555
  • Bradburn v Great Western Ry Co
  • Forgie v Henderson (1818) 1 Murr 410
  • Shearman v Folland [1950] 1 All ER 976; [1950] 2 KB 43
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.