1
THE REPUBLIC OF UGANDA
IN THE HIGH COURT OF UGANDA AT KAMPALA
ANTI-CORRUPTION DIVISION
CRIMINAL APPEAL N0. 13 OF 2014
(Arising from Anti Corruption Session Case No.10 of 2012)
BETWEEN
BYARUHANGA JOTHAM ::::::::::::::::::::::::::::::::::::::::::::::::::::APPELANT
AND
UGANDA :::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::: RESPONDENT
BEFORE: HON. JUSTICE LAWRENCE GIDUDU
JUDGMENT
The appellant, being dissatisfied with the judgment and orders of Principal Magistrate Grade one, her worship Dorothy Lwanga delivered on the 29th day of May 2014, appealed to this Court against the said judgment and orders.
The appellant was convicted of Embezzlement C/ S. 19(c) (iii) of the Anti-Corruption Act 2009 and sentenced to a fine of Ugx. 1,500,000/= or imprisonment for 20 months in default. He was also ordered to pay a refund of Ugx. 6,385,000/= within three months.
The facts of the case as gathered from the record of appeal are that the Appellant was employed as manager of Kisyoro co-operative Savings and credit society herein after referred to as (Kisyoro Sacco); a registered co-operative society.
Kisyoro Sacco held and operated a Bank Account Number 95050100001336 at Bank of Baroda, Mbarara branch in the names of Kisyoro secondary school support scheme co-operative savings and credit society limited.
The Appellant, together with Ndumu Yosia PW3, Florah Niyibizi PW4, and Kakama Shedrack PW5 were signatories to the above mentioned bank account.
On the 1/7/2008, the appellant together with PW4 and PW5 went to Bank of Baroda Mbarara Branch and withdrew Ugx. 16,770,000/=. The appellant kept the money in his bag. The three signatories went separate ways only to meet at the taxi park and headed back to the Sacco offices.
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Upon reaching the office the appellant presented Ugx 8,385,000 to the cashier and entered only Ugx 8,385,000 in the books of accounts. This figure was queried an an audit was carried out. Ugx 8,385,000 was found to be missing.
The appellant was charged with embezzlement. He claimed to have been conned and under took to re-pay it. He defaulted in the payments. He was charged, tried and convicted
The appellant, through his lawyer M/s. Kiwanuka and Co. Advocates contested the conviction and sentence on the following grounds; that:-
1. The learned Magistrate erred in law and fact when she failed to evaluate the evidence on record as a whole thereby arriving at an erroneous decision thus occasioning a miscarriage of justice.
2. The learned Magistrate erred in law and fact when she held that the case against the accused had been proved to the required standard thus convicting the appellant on insufficient evidence.
4. The learned Magistrate erred in law and fact when she sentenced the appellant to an excessively harsh sentence.
5. The learned Magistrate erred in law and fact when she ordered the appellant to refund the embezzled funds yet there was no credible and cogent evidence that he embezzled the said funds
He abandoned ground 3.
It is trite law that the duty of the first appellant court is to re-evaluate the evidence and make its own findings and conclusions without ignoring the judgment. This court has to bear in mind hat it never saw or heard the witnesses testify.
Learned Counsel for the Appellant argued grounds 1,2 and 5 together thus:-