Wakilii

Bwanika Godfrey & 2 Ors. v Uganda (Crim. Appeal No. 07 of 2007)

High Court · [2010] UGHC 118 · 2010 Appeal Dismissed AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Criminal appeal from conviction and sentence by the Chief Magistrate at Mukono
Decision
Appeal dismissed. Convictions for causing financial loss and abuse of office upheld. All three appellants convicted of embezzlement. Appellants ordered to pay compensation and remanded in custody.

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Holding

The High Court dismissed the appeal and upheld the convictions for causing financial loss and abuse of office against all three appellants. The court found that the appellants acted in concert to divert UGX 48 million meant to be returned to the Treasury to the third appellant's personal account. The court set aside the trial magistrate's conviction of the third appellant for theft and substituted it with embezzlement as charged, and further convicted the first and second appellants of embezzlement. All appellants were ordered to pay compensation of UGX 16 million each.

Outcome

Appeal dismissed. Convictions for causing financial loss and abuse of office upheld. All three appellants convicted of embezzlement. Appellants ordered to pay compensation and remanded in custody.

Facts

The three appellants were employees of Kayunga District Local Government. The first was Chief Administrative Officer, the second was Chief Finance Officer, and the third was an Accounts Assistant at Kayunga Hospital. In January 2002, unpaid health workers' salaries amounting to UGX 48 million were to be returned to the Commissioner Treasury Office of Accounts. A cheque for UGX 48 million was prepared payable to Uganda Commercial Bank Mukono, together with a draft application. However, instead of the funds going to the Treasury, the appellants diverted the money through a draft application in the name of the third appellant. Two bank drafts totaling UGX 48 million were issued in his favour and deposited into his savings account at UCB Mbale, from which he immediately withdrew the entire amount. A forged receipt purporting to show that the Treasury had received the funds was created. The diversion was discovered when health workers continued to claim salary arrears and an investigation by the Inspectorate of Government was commissioned.

Issues

  1. Whether the trial magistrate properly evaluated the evidence before convicting the appellants.
  2. Whether the trial magistrate erred in relying on documents marked for identification but not formally admitted as exhibits.
  3. Whether the prosecution proved the offence of causing financial loss contrary to s.269(1) Penal Code Act.
  4. Whether the prosecution proved the offence of abuse of office contrary to s.87 Penal Code Act.
  5. Whether the prosecution proved the offence of embezzlement contrary to s.268 Penal Code Act against the 3rd appellant.
  6. Whether the trial magistrate wrongly shifted the burden of proof to the appellants.
  7. Whether there was a common intention among the appellants to commit the offences charged.
  8. Whether the trial magistrate erred in sentencing the 3rd appellant for embezzlement when she convicted him of theft.

Orders

  • Convictions and sentences on counts 1 and 2 against all three appellants upheld.
  • Third appellant's conviction for theft set aside and substituted with conviction for embezzlement as charged.
  • First and second appellants' acquittal for embezzlement set aside and substituted with conviction for embezzlement as charged.
  • Each appellant sentenced to 5 years imprisonment for embezzlement (count 3), to run concurrently with sentences on counts 1 and 2.
  • Each appellant ordered to pay UGX 16 million in compensation to the Commissioner Treasury Office of Accounts.
  • Bail granted to all three appellants on 17 April 2007 cancelled.

Rules and key headnotes

Evidence — Documents — Exhibits versus items marked for identification — Principles of admissibility
There is a distinction between exhibits and articles marked for identification. The term 'exhibit' should be confined to articles which have been formally proved and admitted in evidence. However, where a document marked for identification is extensively referred to by multiple witnesses who are cross-examined about it, and where the parties rely on it in their submissions on the apparent assumption that it is admitted in evidence, the parties are deemed to have accepted the document as evidence and the court may rely on it.
Criminal Law — Causing financial loss — Elements of the offence under s.269(1) Penal Code Act
To prove the offence of causing financial loss under s.269(1) Penal Code Act, the prosecution must establish: (i) that the accused were employees of a public body; (ii) that they did an act or acts, or omitted to do an act or acts; (iii) that they had knowledge that loss would occur to the public body or government due to the acts or omissions; and (iv) that the loss actually occurred as a result of their action(s).
Administrative Law — Local government — Public funds — Classification of funds held by district local governments
Monies held by district local governments on account of salaries for their staff, drawn from unconditional grants from the Consolidated Fund under Article 193 of the Constitution, remain part of the Consolidated Fund managed under the Public Finance Act. For purposes of the offence of causing financial loss under s.269(1) Penal Code Act, it does not matter whether the money belonged to the district local government or to the Treasury (central government), as both fall within the categories of 'public body' or 'government' envisaged by the statute.
Evidence — Expert evidence — Handwriting experts — Province and weight of expert opinion
The province of a handwriting expert is to point out particular features of similarity or dissimilarity between questioned documents and specimen handwriting, and to express an opinion on whether two handwritings are the product of the same hand. A handwriting expert is entitled to express a confident opinion without extensive argument. If the opinion is confident and is not challenged in cross-examination, the court is entitled to accept it. The credibility of an expert witness is to be decided by the court, but lack of rebutting evidence is not a factor.
Evidence — Handwriting — Identification of signatures — Persons competent to identify
Under s.45 of the Evidence Act, when the court has to form an opinion as to the person by whom a document was written or signed, the opinion of any person acquainted with the handwriting of the person by whom it is supposed to be written or signed is a relevant fact. Signatures may therefore be identified both by expert evidence under s.43 Evidence Act and by persons familiar with the handwriting under s.45 of the Act.
Criminal Law — Common intention — Joint liability under s.20 Penal Code Act
Where two or more persons form a common intention to prosecute an unlawful purpose in conjunction with one another, and in the prosecution of that purpose an offence is committed of such a nature that its commission was a probable consequence of the prosecution of that purpose, each of them is deemed to have committed the offence under s.20 Penal Code Act. Where a fraudulent transaction requires the participation of multiple persons each with distinct roles, and the evidence shows that none could have carried out the offence alone, a finding of common intention is justified.
Criminal Law — Embezzlement — Offence by public officers — Funds in transit within government
An employee of a district local government is a public officer within the meaning of Article 257(1)(y) of the Constitution and part of the traditional public service whose emoluments are drawn from the Consolidated Fund. Where such an employee appropriates public money while it is in transit between one government entity and another, he is guilty of embezzlement as he has stolen from his employer, the Government of Uganda. Persons who enable or aid another to embezzle public funds by signing cheques and authorization documents are guilty of embezzlement as principal offenders under s.19(1)(b) and (c) Penal Code Act.

Legislation cited (18)

Cases cited (13)

  • Alai v Uganda (High Court Bulletin 8 of 1979)
  • Okero v Republic [1972] EA
  • Peters v Sunday Post [1958] EA 424
  • Kassim Mpanga v Uganda (Supreme Court Criminal Appeal No. 30 of 1994)
  • Ignatius Balungi v Uganda (High Court Bulletin 90 of 1988-90)
  • Des Raj Sharma v. R (1953) 20 EACA 310
  • Okwanga Anthony v Uganda (Criminal Appeal No. 20 of 2000)
  • Uganda Breweries Ltd v Uganda Railways Corporation [2002] 2 EA 634
  • Hassan Salum v. Republic [1964] 1 EA 126
  • R. v. Podmore (2)
  • Nguku v. Republic [2004] 1 EA 188
  • Onyango v Republic [1969] EA 362
  • Muzeyi v Uganda, [1971] 1 EA 225

Full judgment

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Bwanika Godfrey & 2 Ors. Vs Uganda (Crim. Appeal No. 07 of 2007) [2010] UGHC 118 (7 October 2010)
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.