The Learned Trial magistrate erred in law and fact when she held that the Appellant embezzled the funds in question.
2.       The Learned Trial magistrate erred in law and fact when she held that the Appellant caused financial loss to his employer.
3.       The Learned Trial magistrate erred in law and fact when she failed to properly evaluate the evidence and arrived at a wrong conclusion resulting into a serious miscarriage of justice.
4.       The Learned Trial magistrate erred in law and fact when she convicted the Appellant to serve 8 years imprisonment and ordered him to pay compensation in the sum of Ug. shs.105,000,000/= (One hundred and Five million shillings only).
5.       The Learned Trial magistrate erred in law and fact when she held that all the ingredients of the offences had been proved beyond reasonable doubt.

The principles which guide an appellate court on a matter such as this are well established. They were related to in Selle and Another Vs Associated Motor Boat Co. Ltd and Others [1968] EA 123 where Sir Clement de Lestang Vice President of the Court of Appeal for East Africa noted at page 126 of the report:

“.. In the instant case the prosecution has the burden to prove the following ingredients:-
(a)     

That the accused is employed by government;

(b)     

That he stole the employer’s property i.e. money;

(c)     

That the property came into his possession by virtue of his employment.”

I have looked at the evidence as a whole and, with due respect to the Learned Trial Magistrate, I find nothing to suggest the appellant stole money or anything else. In the circumstances I do not find the finding by the Learned Trial Magistrate that there was embezzlement correct. The prosecution never proved this offence beyond reasonable doubt, as it ought. The first ground of appeal succeeds.

The second ground of appeal concerns the charge of causing financial loss. Here again the Learned Trial Magistrate considered the elements of the offence, which comprised the second count and noted, of significance, that the loss amounted to shs.105,308,074/=. Indeed this is the sum which she ordered the appellant to pay as compensation. In her judgment at page 6 the Learned Trial Magistrate correctly noted that the appellant was employed by the Government and that in the performance of his duties he must have done or omitted to do an act knowing or having reason to believe that the act or omission would cause financial loss to the employer. It is then the offence would be complete. I agree with that and go on to agree that the record is replete with evidence of neglect and misappropriation of funds culminating into financial loss to the employer. While one can make note of the ill-fared purchase of the generator, missing funds from the capitation grant, lemon trees proceeds of which remain unclear and several other escapades, no proof exists to justify the sum of shs.105,308,074/= seen as the defining figure for the loss caused by the appellant. This is the figure which led to the order for compensation. More on that later. The Learned Chief Magistrate properly found that the offence of causing financial loss was proved beyond reasonable doubt, nevertheless. I cannot fault her here.

Having found as I have above, I shall treat the other grounds generally since I have in the main pronounced myself on the salient matters. Consequently this appeal succeeds partially in that the appellant is acquitted on count 1 of the charge and that is embezzlement. The order of compensation is set aside given that no basis exists for it. Needless to say this does not shut out possible civil redress. Given the circumstances of the case and the finding that the appellant caused financial loss I find no reason why I should disturb the sentence of 8 year’ imprisonment. I so find.



PAUL K. MUGAMBA
JUDGE
4^th December 2009