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Uganda v SP Ajuna Mark & 2 Ors (Anti-corruption Case 18 of 2018)

High Court · [2018] UGHCACD 9 · 2018 Appeal Partly Allowed — One Accused Convicted AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
State appeal from Chief Magistrate's acquittal on charges of embezzlement and abuse of office
Decision
SP Ajuna Mark and D/SGT Eunu Annet Ruth acquitted and appeal dismissed. D/SP Kasozi Jackson convicted of Abuse of Office and sentenced to one year imprisonment.

Observed later treatment

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Holding

Held that where the charge alleges embezzlement of 130 million shillings but the prosecution proves only 16.3 million, conviction on the charge as framed is improper and the variance is fatal. However, an officer in charge of CID who distributes exhibit money to subordinates and civilians without lawful authority acts arbitrarily and abuses the authority of his office, regardless of whether the full amount alleged was proven. D/SP Kasozi Jackson convicted of abuse of office; co-accused acquitted for lack of evidence of common intention.

Outcome

SP Ajuna Mark and D/SGT Eunu Annet Ruth acquitted and appeal dismissed. D/SP Kasozi Jackson convicted of Abuse of Office and sentenced to one year imprisonment.

Facts

On 31 December 2015, Makhoha Godfrey, a security guard suspected of stealing money during cash in transit, was arrested at Kumi Bus Park with four bags containing money. He was taken to Kumi Police Station where the DPC and OC/CID (D/SP Kasozi Jackson) arrested and detained him. D/SP Kasozi declared recovery of 150 million shillings from the suspect. However, investigations revealed that D/SP Kasozi distributed money to police officers on duty that night and to civilian relatives of Makhoha, including 28 million sent to Makhoha's mother. Regional Police officers recovered approximately 16.3 million shillings from various police officers and civilians, all of whom identified D/SP Kasozi as the source. Some money was found buried in a banana plantation. D/SP Kasozi and two co-accused were charged with embezzlement of 130 million shillings and abuse of office. The Chief Magistrate acquitted all three accused, holding that the prosecution failed to prove the alleged amount and that without Makhoha's evidence, it could not be established that more than 150 million was recovered. The state appealed.

Issues

  1. Whether the Chief Magistrate erred in disregarding vital prosecution evidence.
  2. Whether the prosecution proved embezzlement of 130 million shillings when only 16.3 million was exhibited in court.
  3. Whether the respondents abused their offices by distributing money forming part of a criminal exhibit.

Orders

  • Appeal dismissed as against SP Ajuna Mark and D/SGT Eunu Annet Ruth.
  • Appeal allowed in part against D/SP Kasozi Jackson.
  • Order of acquittal of D/SP Kasozi Jackson set aside.
  • D/SP Kasozi Jackson convicted of the offence of Abuse of Office contrary to section 11(1) of the Anti-Corruption Act 2009.
  • D/SP Kasozi Jackson sentenced to one year's imprisonment.
  • Right of appeal to the Court of Appeal within 14 days explained.

Rules and key headnotes

Criminal Procedure — Variance between charge and evidence — Effect on conviction
Where a charge sheet alleges embezzlement of 130 million shillings but the prosecution adduces evidence proving only 16.3 million shillings, the variance between the charge and the evidence is fatal to conviction, and it is improper for the court to convict on the facts stated in the charge sheet when the evidence establishes materially different facts.
Criminal Procedure — Prosecutorial duty — Amendment of charges to conform to evidence
Where the evidence adduced at trial differs materially from the facts alleged in the charge sheet, diligence requires the prosecution to amend the charge sheet to tally with the evidence, particularly when a key witness declines to testify.
Abuse of Office — Definition of arbitrary conduct — Distribution of exhibit money
An officer in charge of CID who distributes money forming part of a criminal exhibit to subordinate officers and to relatives of the suspect, without lawful authority or disclosed source, acts arbitrarily within the meaning of section 11(1) of the Anti-Corruption Act 2009, as such conduct is not based on reason and is outrightly illegal.
Circumstantial Evidence — Inference from conduct — Source of distributed funds
Where a police officer immediately after booking in a suspect arrested with money begins lavishly distributing funds to colleagues and the suspect's relatives, without disclosing the source, and investigations lead to recovery of such funds from recipients who all identify that officer as the source, an irresistible inference arises that the distributed money originated from the exhibit recovered from the suspect.
Joint Criminal Liability — Common intention — Requirement of evidence
To convict co-accused of acting in common with a principal offender, there must be evidence that the accused acted in common with the principal; mere possibility that funds were distributed to co-accused without evidence of common intention is insufficient to sustain conviction.
Sentencing — Abuse of Office — Mitigating factors — Automatic disqualification from public office
Upon conviction for abuse of office under the Anti-Corruption Act 2009, an offender is automatically disqualified from holding public office for ten years under section 46 of the Act, and this consequence must be considered as part of the punishment when determining an appropriate sentence.

Legislation cited (4)

Full judgment

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The original judgment as reported. Read the original PDF before relying on any passage.

Uganda v SP Ajuna Mark & 2 Ors (Anti-corruption Case 18 of 2018) [2018] UGHCACD 9 (16 November 2018)
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.