[1992] UGHC 69

## THE REPUBLIC OF UGANDA

Mr- '^3 NvAcii

## IN THE HIGH COURT OF UGANDA AT KAMPALA

## CRIMINAL APPEAL NO. *51* OF 1991

MAJOR JOHN KAZOORA APPELLANT. VERSUS

U G A N D A ............................. RESPONDENT. BEFORE:- The Honourable Mr, Justice J. W. N. Tsekooko

## JUDGMENT

The appellant Major John Kazoora was on 3rd September, 1991 convicted by the Ag. Chief Magistrate of Buganda Road Court of the offence of embezzlement contrary to Section 257 (a) of the Penal Code Act. He was sentenced to imprisonment for five years. He was ordered to make good Shs. 12,000,000/t which was alleged to have been embezzled. The learned Ag. Chief Magistrate made a further order concerning the balance of money on Account No. 41106001.

The appeal is against conviction and the orders of tho" trial c.ourt.

The summary of the background to the case is this.

On l8th October, 199^ the appellant was appointed Director of Administration and Finance in the Internal Security Organization (hereinafter referred to as ''ISO"). ISO is headed by a Director-General in the office of the President. At the time of appellant'^s appointment ISO was headed by Brigadier Muhwezi Kat.ugugu (now PW1) and he is the one who in fact signed the letter of appointment which, is Exh. D1•

ISO desired to electrify its sites at Makajjo II Estate among others as early as 1989. According to" Exh. PIV, in February, 1990,

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Uganda Electricity Board informed ISO that the cost of electrifying Kakajjo II Estate would be Shs. 27,&99,637/=• On 9th August, '1990 the president's office made part payment to UEB in the sum of Shs. 24,575,680/= by cheque (Exh. PII). Because of the nature of the estate (Makajjo), ISO asked for the money to be refunded allowing deduction to cover UEB preliminary expenses. As a result by letter dated 12th November, 1990 (Exh. PHI) the appellant requested UEB to refund the money. By a further letter dated 16th November, 1990 (Exh. PV) the appellant advised UEB to make refund cheque in the name of ISO. A cheque dated 11th January, 1991 for Shs. 23,713,46l/= was issued by UEB in the name of ISO. The cheque was according to the UEB record book (Exh. P.9) collected and signed for on the same day by PV/20 (Lt. John M. Bwomwezi). It appears the appellant and PV/20, who was ISO Financial Controller, unsuccessfully attempted to encash that UEB cheque. Consequently they both opened ISO account No. 41106001 in the Nile Bank on 15th January, 1991 by use of that UEB cheque. The two were joint signatories to the account. From the evidence of PV/20 two cheques totaling Shs. 11O,24O,OQO/= were on 1?th January, 1991 deposited on the same account. Exh. P.19, the Kile Bank statement of account reflects this. The same statement of account, supported by PW20's evidence, shows that ftn 18th January, 1991 Shs, 80,000/= was withdrawn from the account. A further She, 2M/= and Shs. 19,270,000/= was withdrawn respectively on 23rd January, 1991 and 24th January, 1991- On the evidence of PW20, Shs. 80M/= and Shs, 19,270,000/= was used for purchase of vehicles. According to him and PW1 the vehicles were used by-ISO during the IfEC/ACP conference in Kampala. According to

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PW20, Shs. 2M/= was used in ISO office. Exh. P.19 shows that on 25th January, 1991 the account was debitted for Shs. 12m/=« This was through use of ISO cheque No. 411934 Exh, P.10 which, according to P'720, was written- by him on appellant's instructions. It was signed jointly by PW2O and the appellant as indeed is the case with the other three cheques in respect of the other three amounts alluded to earlier•

Exh. P.10 was drawn in the name of Moses Buruhukwa (PV/29) and is dated 24th January, 199^• According to PW29 Exh. P.10 was deposited by P'729 on appellant's account on 25th January, 1991 on the advice of the appellant. The appellant accepts this and explained that that cheque or its proceeds were intended for an ISO agent named Jane Rwomijjo, and employer of PW29, who had travelled to London to receive medical treatment and on work for ISO. That she is the one who asked him (appellant) to put th9 cheque on his account. It was the debitting of the cheque for Shs. 12M/-- which formed the prosecution case. The prosecution called JO witnesses. The appellant made an unsworn statement, at the trial. The memo of appeal contained 7 grounds. ,

Mr. Ayigihugu and his junior, Mr. Retsida, c- mnsel for the appellant abandoned Ground 6 of the memorandum of apjpeal. Learned State Attorney, Mr. Ojok in the result did not atddress court on the same ground.

The first and second ground's of appeajl are somewhat connected. Consideration of the second ground involves: const deration of whole evidence and part of first ground. I shall reproduce them as they appear in the memorandum of appeal:

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- "1. The learned Trial Ag. Chief Magistrate erred in law and fact to convict the appellant when there was no evidence to prove- the essential ingredients of the offence namely: - (a) that the appellant received or took into his possession the sum of shillings 12 million. - (b) that the appellant stole the sum of Shs. 12 million on 25th January, 1991 or at all. - (c) that the money v/as the property of the appellant's employer. - (d) that the appellant received the money on account or by virtue of his employment. - 2. The learned Ag. Chief Magistrate erred in law and fact in failing to consider the defence case adequately or at all and further erred in failing to give the reasons for rejecting th'-- defence".

At the hearing of the appeal Mr. Ayigihugu adopted all the submissions he and his junior hqd made before the trial court. Those submissions appear on pages 185 to 227 of oyclestyed copy of the proceedings of the trial court. The submissions before this court by Mr. Ayigihugu and his junior counsel were substantially the same as those made before the trial court. Naturally the criticism of the judgment of the trial court was in this court the principal aspect of the submissions by learned counsel for the appellant.

The first ground of appeal goes to the core of the case preferred against the appellant. It is abou-; the ingredients of embezzlement.

Cn the first ground of appeal Mr. Ayigihugu first argued paragraphs ¹ (a) arud. ¹ (d) thereof together and (bX and (c) separately followed by ground ^2.

Mr. Ayigihugu referred to Section 257' (a) oif the penal Cpde when making submissions on ground ¹ (a) a:nd ¹ (d)» and **Indeed** as regards the other leg of his submissions. The relevant portion ....... I./5

of that Section which is the amendment of the penal Code affected by Statute 5 of 1987 reads as follows:-

''Any person who, being:-

(a) any employer, servant or officer of the Government or public body steals any chattel, money or valuable .security, being the property of his employer, master received or taken into possession by him for or on account of his employer, master ... or by virtue of his office shall be guilty of the offence of embezzlement and shall, on conviction, be sentenced to a term of imprisonment of not less than three years ....... "

The gist of Mr\* Ayigihugu's submissions, as ^I understood him, is that the evidence adduced by the prosecution does not establish the charge of embezzlement as laid ^gainst the appellant in the charge sheet nor does the evidence establish any other offence such as simple theft. He further contended that even if there was some evidence to establish theft, appellant could not be convicted of theft as in his view theft is not minor and cognate to embezzlement. On this last argument the matter depends in my view on the interpretation of Section 14? of MCA, 1970\* Or indeed a general consideration of reasons for the creation of Sections 150 to 152 of the Magistrates Courts Act, 1970\* I shall.revert to this later.

The amended charge upon which the appellant was prosecuted is dated 6th May, 1991 • Particulars of the offence as set out in that charge sheet are as follows:-

"MAJOR JOHN B. KAZ'OORA and another who is still at large on the 25th day of -January, 1991? in Kampala City being axi employee of the Government o:T Uganda or Public body as Head of Administration and Finance with Internal Security Organization, stole Uganda of Shillings TWELVE MILLION the property/ Internal Security Organization which came into his possesion by virtue o:f his employment". ....... /6

There-is a minor point raised both before me and the- trial (in t':<- lov/cr) court which can be disposed of here first. Mr. Ayigihugu submitted that the prosecution should have specifically named that other person in the charge sheet. He did not cite authority in support of this. The learned S^ate Attorney had suruortod the charge. The learned A . Chief Magistrate was of the view that there was no need to disclose that 6ther person.

It appears that Section 86 (d) of the Magistrates Courts Act, 1970 supports the view of the counsel for the appellant. But as I pointed out during the hearing of the appeal the form of the charge sheet on this point follows the practice which for long has been followed in this country. And see page 59 of A Guide to Criminal Practice in Uganda by justice B. J. Odoki. This practice is however acceptable whore' the unnamed person for our arguments here is a suspect who could be a co-accused but can't be joined in the charge sheet because he is not available to be joined. It is not correct as stated by the Chief Magistrate that it would be improper to disclose the co-accused. It would militate against our system of justice if a would be co-accused is well Known and can be charged but the prosecution chooses to be secretive about it for its own convenience. There may be instances explainable under Sections 84 and 85 of MCA, 1970 where a co-accused need not be on same charge sheet. In this case evidence of PVJ21 suggests PVJ29 was most probably that other person. I think non disclosure did not occasion injustice to appellant in as much as the charge sheet is not really evidence. The charge could have been better framed\*. though.

Appellantls counsel then submitted in effect that in the light of the particulars of the offence and in viouw of the relevant law, /7

that apart from establishing / appellant ..was an employee of the Government of Uganda, the prosecution did not prove the ingredients of the offence of embezzlement. That the prosecution failed to prove that the appellant stole the property of his employer/master leave alone any property. That prosecution failed to prove that property had been received or taken into possession by appellant for or an account of his master by virtue of his employment. Counsel accepted that the learned Ap. Chief Magistrate had correctly at page 25 and 27 of judgment stated the ingredients to be established nevertheless the learned Ag. Chief Magistrate misdirected himself and, for instance made no finding that the appellant received or took into his posession Shs. 12m/= on 25th January, 1991 or at all thereafter. He cited the case of R. Vs. Keena L. R. I OCR 113 (see Archibold, J6th Ed. page 1727 Para 1728)for the view that a charge for embezzlement of money, bank notes cannot be supported by-evidence of embezzlement of a cheque. He further submitted that there is no evidence that appellant encashed either the UEB cheque or any other cheque and referred to page 787 (para 1522) of Vol. 10 of Halburys Laws of England, 3rd Ed. Learned State Attorney in response maintained the contrary contending that the UEB cheque and subsequent charge were the basis of the charge (which of course is not right). The State Attorney further submitted that there was a finding that appellant stole Shs. 12m/=»

In my view the trial Magistrate was rightly criticised for dwelling too much on the refund of Shs. 23,713,^61/= by UEB by cheque and on how that cheque wqs used in opening the account. He misdirected himself (page 31 of his judgment - typed) by

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asserting that the appellant directed PW20 not to enter UEB cheque in the books of account because PW20's evidence does not state so. In fact the other cheques from Treasury (for 110m/=) were not entered either.

It is cleir to me that the learned Ag. chiof Magistrate first made an erroneous finding that the appellant in effect stole the USB cheque for Shs. 25»7'13, ^61/- before he (C. M.) belatedly concluding (at pages ³⁷ '-nd 39) that appellant stole Shs. 12m/=.

In my view that finding by inference is preceded by improper assessment of thu case against the accused.

The learned State Attorney, Mr. Ojok Wyne,when supporting that approach referred to page 3^ of Chief Magistrate's judgment and in effect submitted that there was a finding of theft.

Many authorities on law and fact were cited before the learnea An.. Chief Magistrate by both sides about the issue of stealing Shs. 12m/=. Eg. R. V. Davernport /195^7 ¹ W. L. P. 5^9 Shiv Kumur Sofat V. P. /^9577 EA 840, Cr. App. No. 29/90 a Ssengendo's Vs. Uganda, 9th Edition of Kenny's Outlines of Criminal Law and others\*

It appears to mo as submitted by counsel for, the appellant that the Ag. Chief Magistrate did not subject the prosecution evidence to scrutiny before rejecting the defence case. Apart from the evidence of PW14, a hostile witness, the trial court appears to have accepted wholesale prosecution evidence without necessary regard as to the burden of proof in Criminal trials. The learned Ag. Chief Magistrate then belatedly referred to the burden of proof at the end of his judgment (page 42) which is not enough in itself.

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In my view it is not the ritualistic use of the words; ''the burden of proof lies on the prosecution" that alone matter, I think it is the actual evaluation or assessment of the evidence for both sides by the court in the course of the judgment which will demonstrate whether or not the trial court was alive to the issue of where the burden of proof lies and whether that burden of proof has been discharged by the prosecution. See page 16 of the Uganda Court of Appeal Cr. Appeal 2 of 1977 Ndyayakwa & others Vs. Uganda and reported in /19787 HCB 181.

As the amended charge sheet dated 6th May, 1991 shows, c" <arly the crux of the case against the appellant was not the stealing (or interception) of the UEB cheque for Shs. 23,713,401/=. The case was that of stealing (embezzling) sum of Shs. 12m/= on 25th January, 1991\* Lengthy submissions were made on this issue. The learned Ag. Chief Magistrate just, summarised the evidence for both sides for the greater part of his judgment making no observations about any contradictions, conflicts or inconsistencies. He then took corridarable effort (pages 29 to 3^- of his judgment) on the issue of UEB cheque qfter which he concluded in effect that the appellant hr? stolen the UEB cheque. The learned S^.ate Attorney saw no inyro <• • / in this approach.

In my view'nuch as the UEB cheque could h^ve been alluded to in the course of the judgment, the case against the appellant rras not the appropriation of the UEB cheque.

I think that having held that the appellant in eff- ^t stole the UEB cheque the Chief Magistrate's vision of the requisite decision ■•in the case was considerably obscured.

3../10 Both the learned State Attorney and the counsel for the appellant in the course of their submissions stated what a first appellant court should do. That I should evaluate the evidence and form my own conclusions.

As it is well. known now, as a first appelate court I am supposed to do that, giving due allowance for the facts that I have not had the benefit of seeing and hearing the witnesses which the trial court had. See Ruwala Vs. R. /19577 EA. 570, Pandya Vs. R. /'»9577 EA. 356 Okeno Vs. Republic /19727 EA. 52. C. B. Bitwire Vs. Uganda, Cr. App. No. 25 of 1985 (Uganda Court of Appeal) and Meran And others Vs. Republic /19717 EA 221 at page 225, Eria Katende Vs. Uganda /19727IULRI, and Kairu Vs. Uganda /19787 HCB. 125: I have to rehear and readjudicate after re-evaluation of the evidence on record.

In my considered view the main witnesses for the prosecution whose evidence had to be properly evaluated against the statements of the appellant or with the statements to ascertain whether or not the the appellant had committed' / offence of embezzlement were PW1 (Brigadier Jim Muhwezi Katugugu), PVJ20 (Lt. John Machine Bwomezi), PW22 and PW29 (Moses Baruhukwa Mugume) and in some way PW50 (Captain Stephen Kwiringira). This last witness was relevant particularly on the issue of agents much as his evidence dealt with a hypothetical agent more than a real agent in ISO.

The UEB employees PWS 2 to 8 and 10, the Nile Bank witnesses PWS 9,15 topr?1,9, the Barclays Bank witnesses PWS **11** to 14 and the police and other witnesses testified about possible anticipated loopholes in the prosecution case. This was to prove some linoks in the chain of evidence. The only exception being the alleged confession by appellant.

The evidence of PW1 contains contradictions and inconsistencies which called for his evidence to be subjected to scrutiny before being accepted by the trial court. And even the alleged admission by the appellant in office of PW1 raises suspecion as the answers of PW1 in cross-examination show.

At page 5 of the typed proceedings, PW1 claimed he was surprised about the opening of the account by PW20 and the appellant in Nile Bank. He continued ''later, I learnt of the withdrawal of money to the tune of 12 million shillings which was contrary to Standing Regulations at the tiwe". At page ⁶ he suggests that after the withdrawal of 12M/=, PW1 issued a circular on 15th January, 1991 • This definitely contradicts PW1's contentions about the accout. Subsequently he informed the police to follow up the matter culminating in a brief by ACP Okumu on 21st February, 1991 and two inspectors of police on 12th March, 199^ who were to and did .arrest the appellant. Yet during cross-examination (at page 11 of the proceedings), PV/1 contradicted himself by stating that "1 called in the police even before 1 was aware, of the 12 million". ^I get the impression that this witness was not telling the truth about whether the police were called because of the opening of the account (which the prosecution termed ''illegal") by use of the UEB cheque or whether the police were called because shillings 12M/= had allegedly been withdrawn from the ''illegal" ISO account. When did PW1 contact police? It ought to be noted here that the ''illegal" account was opened on 15th January, ¹ 99 ¹ as shown b;y the deposit slip (Exh. PIN) and Exh. PIJ, a statement of the accoucit (41106001). The latter (Exh. PIJ) also shows that Shs.. 12M/= w as debited from

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the account on 25th January, 1991? the day on which Exh. X, the cheque for Shs. 12m/= was deposited in the Nile B-nk. If PW1 was truthful in the claim that by the time he involved the police he did not know of the alleged stealing of Shs. 12m/= then PW1 called the police to investigate something else but no theft of Shs. 12M/=. Yet PV/21 talks about Shs. 12M/=.

PY/1 agreed in evidence that Shs. 80m/= was utilised on the business of EEC/ACP conference. He however contradicted PW2O who . incidently supports the appellant that PW1 knew source of the 80m/= while he (P'-71) claimed that he did not know where that money came from. That money was of course withdrawn on 18th January, 1991 and used to pay for vehicles which PVJ1 , on evidence available, was aware of since he was invloved in discussion with his directors, including the appellant, about the conference affairs\* PW1 claimed the purchases cf vehicles were made in May (see page 10 of record). This contradicts PV/20 who testified that purchase of the vehicles was made on l8th January, 1991\* If PW1's claim thcit he wasn't aware of where Shs. 80m/= came from is accepted, it shows that his assertion that he had put a ceiling of not spending over JOO,000/= without his exprers authority is doubtful. He could not discuss purchase of vehicles using Shs. \*80M/= without knowing its source. At page 72 of the typed record, PW20 shows PW1 was aware of Shs. 110M/=• That amount was deposited on ''illegal" account before Shs. 80m/= ^v/jls paid out. /jf PW1 was invloved in the purchase of the vehicles upon which ever Shs. 80m/= (from the illegal account) was spent by T8th January, 1991? is it not reasonable to assume that in fact t}ie allcfQl ''illegal" account was known to PW1 or

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indeed that the account was official. <The amount of money is too much to have been spent without good knowledge of PW1 about its source. Otherwise the evidence would and does support the appellant's claim that PW1 need not have known from where or how all money for the operations of ISO originate or how it is spent. It appears PW1 did not have total control over appellant's work. No clear regulations about appellant's work were produced at the trial

These contradictions, inconsistencies, conflicts and denials even affect PW1's claim that the appellant admitted in PWl's presence that he used 12M/= on personal matters and that the appellant promised to refund the money. I shall revert to this admission issue later in this judgment.

However the Learned Ag. Chief Magistrate did not specifically, as expected of a trial court,, raise, consider and resolve these conflicts, contradictions or inconsistencies in the evidence of PW1. Those.confliets,.inconsistencies and contradiction are not simple or minor ones which can be easily brushed aside. They affect reliability of the evidence of PW1.

As I shall point out below the learned Ag. Chief Magistrate did not raise, consider and resolve nny conflict, inconsistencies or contradiction in respect of any other witness for the prosecution (except PVJ14 who was declared hostile and so valueless). He merely made a blanket acceptance -of it he prosecution case at the bottom of page J9 and top of page 40 of his judgment (cyclestyled copy) by stating thus:-

"In assessing the credibility o.f a v/itness the court should take into consideration the inconsistencies between the testimo-

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nies, given and any previous statements proved to have been made by him.

The court should also consider any contradictions and conflicts between the witness and any other witnesses.

Grave inconsistencies and or contradictions may prove fatal unless satisfactorily explained while minor ones unless they point to deliberate falsehood may not be fatal.

In the instant case having considered the evidence as a whole I .accept the testimonies of all prosectuion witnesses as substantially true save for the evidence of PWl4n» The Chief Magistrate made these conclusions before direfting his mind to the burden of proof in criminal trials.

Undoubtedly the portions of the above passage which refer to the applicable general statements of principles of law are correctly stated. Unfortunately the record of the judgment doesen't show that any in.consistaneies, contradictions or conflicts were commented upon axtd resolved by the court. I am afraid this is not a situation justifying a presumption that the trial court must have in fact considered and resolved any contradictions, inconsistencies or conflicts in the prosecution case. And yet these would on have a bearing/grounds 1,2 and 3 of the memo of appeal\* It is our criminal l.ftw that burden of proof is always cji prosecution.

I have pointed out some of the contradictions and inconsistencies in the evidence of PW1 which Galled for Scrutiny. I now take the ovide-iice of PW20, another kay witness. Between him and PW1 , it is not. clear when PW20 informed PW1 about the opening of the :,illegal" -account PV/20 was the Financial Controller\* Ono

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would expect him to be familiar with the Operations of ISO accounts and restrictions about when and where to open accounts, ^I don't share- the lower courts view that appellant persuaded PV/20 to open the account and be signatory, He (Pv/20) would know who should be signatories and the limits on withdrawals such as not exceeding Shs. 300,000/=. When PV/20 took over he is expected to have boon briefed. There was proper handover yet PV/20 jointly opened an account with the appellant on 15th January, 1991 retained custody of the cheque book for the account and had huge amounts of money deposited thereon. Ho (PW20) equally had huge amounts of money beyond alleged limit of Shs. JOO,000/= withdrawn apparently without resisting, 80h/= was the first to be withdrawn from the account with the full knowledge and by PW20 but according to PVJ1 apparently without the slightest idea about its source by PV71. A further two withdrawals first of Shs. 2,000,000/= on 22nd January, 1991 for office use then of Shs. 19,270,000/= on 24th January, 1991 before the cheque for Shs. 12M/= was issued, again having been signed by PW20. All these J withdrawals were for official use on ISO affairs. If there were regulations written, or unwritten, about limitations on opening accounts and withdrawals of money or spending the same, it is inherently improbable that PW20 would have simply joined the appellant in opening the disputed account and written out the four cheques which he jointly signed with the appellant without raising a finger to point our first that no authority letter h.'d been given to the Nile Bank by ISO about operating the account. Secondly he did not point out that the amounts exceeded the limits which PV/1 claimed he had set up.

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Nor would a poison in PW20's authority and financial position be party to the signing of cheques for excessive amounts without mentioning to p',71 at the earliest opportunity in which case PV/1 would stop the- operation of the account, if the operation was questionable. It should be noted that withdrawals and or debitting of the disputed account did not start until after the cheques for Shs. 110,2^0,000/= had been deposited thereon by ,PW20. PVJ20 claims' the deposit was r/ade on,the instructions of the appellant. A.t the same time ?'.72O testified that PW1 was aware about this money (Shs. 110p;/=) although P\71 seems to deny knowledge of its source.

It should be noted that before cheque for Shs. 12pl/= was made there were three debits of Shs. 80m/=, 2m/= and Shs. 19,270,000/= from the disputed account and the money was for official purposes. The Nile Bank honoured the cheques without written authority. And towards the end of his testimoney in cross-examination (at page 75) PW20 is recorded to have stated, apparently in relation to the cheque for Shs. 12M/=, thus "It is evident in the cheque book its transfer was for office use". Yet earlier on (same page 75) PVJ20 stated "1 have to know the account of a cheque in matter in the context that a cheque is written when there is need for money in a particular operation". PW2O was not re-examined on this point to explain what he meant. If PW20 did not ask .appellant the need for the cheque for Shs. 12M/=, why say it was for office use?. So the face value of these answers has to be accepted particularly so since apart from the signature the appellant doesn't appear to have written anything else on the cheque. My considered view is that PW20 was not truthful to court inbout why he wrote the cheque for Shs. 12M/=. /17

The learned Ag. Chief Magistrate dwelt too much on retention of the UEB cheque and thereby imputed wrong motive to the appellant without subjecting PW20's evidence and the surrounding circumstances to scrutiny. Had he done so, I think he would have made different conclusions.

The evidence shows that the UEB cheque was followed up most times by PW2O which I take to bo his duty. The cheque was written by UEB on, (and collected by PW20 on) 11th January, 1991- PVJ2O took it to appellant who told him to keep it till further instructions. PW20 nowhere says he was instructed not to post the cheque in ISO accounts book. Indeed even the Treasury cheques for 110,2^-0,000/= were not posted either. There is no basis for blaming the appellant for the omission to post the cheques in books of account for ISO.

Further more the evidence of PW20 shows that the next time the appellant called PW20 about the cheque was when the appellant asked PVJ20 to cash the cheque. PW20 failed. So apparently on that same day PW20 and appellant attempted once to encash the cheque but could not do so. That same day the cheque was used to open the disputed account in the Nile Bank. And according to PW20, the appellant preferred Nile Bunk because it would be easier to get money. The attempt to encash UEB cheque or the use of it to open disputed account was not done secretly by appellant alone.

From any diary of 1991 it is evident that 11th January, 1991 was a Friday. The evidence of PW20 doesn't show at what time the UEB cheque was given to him on 11th January, 1991/ From the account

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given by PV72O, it is clear that the appellant contacted him next on 15th January, 1991 • ^hat was a Tuesday. Apart from 1^th January, 1991 » the other days (12/1 and 13/1/1991) wore weekend helidays. Thus the keeping of the cheque over the weekend can be understood. Nc sinister inference can be made for keeping cheque ove r w^e ^okend h; • ¹ idays.

The evidence of P'72O appears to suggest that he informed PW1 about the disputed account after 20th or 25th January, 1991\* Yet P-.-/1 ap .ears to have known about the 1.2M/= cheque early: See evidence of ACP Okumu (PV/21). He was contacted for this case before 10th February, 1991 - PW1 doesn't appear to have taken quick action about the money then (if wrongful conduct on part of appellant was evident). One may legitimately infer that PW20 informed PW1 that the money (12M/=) was for official use as his (P:.72O's) answer in cross-examination shows. Record of evidence shows ACP Okumu was briefed by PV/1 in late Feb. 1991 (21/12/1991) and the other policemen took action by arresting accused on 12th March, 1991\* By 25th January, 1991 there'was still Shs. 2lM/= on the disputed account. PW1 had not before discussed either the opening of account or the issue of Shs, 12m/= with appellant. According to Exh. P.17 portion TP - 2b, appellant and PW20 operated the account up to 5th March, 1991 • On the evidence available I do not accept that the appellant had bad motive in opening disputed account. Neither do I share the confidence of the learned Ag. Chief Magistrate that appellant duped PVJ20 into d-.ing all that he (PW20) did nor that PW20 did whatever he did unwittingly. Surely if appellant's operation of account was questionable why allow him up to 5th /19

- 18 - March, 199'1\* P'720 was not a simple ordinary clerk. ^I don't accept, after review of all the evidence, that the explanation of PW20 that he simply obeyed appellant because appellant was his senior. I hold the same view even if I take their military ranks into account, PW20 hold very responsible postion and could not simply succumb to instructions of the appellant without appreciating the purpose of the instructions. 1 think that PV/20 knew more about Shs. 12M/= than he cared to tell the trial court.

PV/29 testified that there was some relationship between appellant and the late Jane. PW29 does not appear to have known all that was going on between the appellant and Jane. The evidence of PWJO on disclosure of agents of ISO is unsatisfactory. In one breath he claims one may not disclose interlligence agents; In another breath he claims one must disclose the agents to superiors. He however agreed with the appellant that some agents are paid money without being listed on a pay roll. Moreover I think that PWJO was essentially discussing the position of a hypothetical agent rather than ISO agent. I note that in his inquiry statement (Exh. Dill) on 22nd March, 1991 the appellant stated that the money (Shs. 12M/=) .was operationally there. On page J of the statement, the words ''that is to say the said amount of money was covered by operation¹' appear to have been cancelled. And &s I stated earlier this inquiry statement and coutionary statement were not tendered in evidence by the prosecution. These two statements show earliest recorded reaction by appellant.

Thus the appellant did not deny signing -;he cheque for 12M/=. He did not deny asking PW29 to deposit the cheque on his account

..../20

after he had. previously.to that, asked PW29 to keep the cheque. In his inquiry statement of 22nd March, 1991 he said he knew ?i:/29 • In his evidence the appellant claimed to have received instructions from Jane for PW29 to deposit the money on appellant's account, That before, i.e before 12th March, 1991, Jane sent some people to be paid. It is true that appellant was contradicted by PVJ29 as to whether P.729 had an account or not. But the conduct of PYJ29 and the facts dosclosed by PV/21 that he was to have been a coaccused of appellant makes it desirable that the evidence of PW29 must be tr? ,;t ⁱ with considerable caution. PVJJO described appellant as a good man. The evidence of PW29 shows that by 25th January, 1991, Jane was in London and still alive. There is no evidence to show that the appellant could not have been able to contact Jane on 25th January, 1991 before banking the cheque *•: :c* indeed before his arrest on 12th March, 1991. There is no evidence upon which I can conclude that if, as claimed by the appellant, PW1 had contacted appellant about the 12m/= and discussed the same, the appellant could not have explained what happened to the money. I am not certain that P'.72O is entirely honest about Shs. 1211/=.

Considering that ISO is an intelligence agency whose operations have, of necessity, to be covert, it is my view, cn the evidence, that the prosecution evidence particularly that of PV/20 and 29 did not rule out the real possibility that Shs. 12M/~ was intended for ISO purposes such as payment bo Jane as an ISO agent. Thus there are reasonable doubts about the credibility of the evidence of PH's ¹ ard PV/20 particularly about the purpose to which Shs. 12m/= v/as put. ^I therefore hold that the rejection of the

/21

appellant's evidence without scrutiny of the prosecution case was not justified. I accept the criticism of the trial court's judgment on this issue by appellant's counsel. With due respect to the learned Chief Magistrate the following passage from the case of Republic Vs. Kidasa /1973? E. A. J68 at page 370 applies to this case:- Trevelyn, J., there stated "He (Magistrate) clearly erred in law and thereby precluded himself from giving any or adequate consideration to the rest of the evidence. In otherwords having administered to himself an erroneous direction on law, he was prevented from coming to a proper conclusion on the facts". I therefore hold that ground two of the appeal must succeed.

I think that in view of the conclusion I have reached on ground two it is logical to consider the third ground of appeal before considering ground ¹ which essentially dea\_. ³ with the ingredients of the offence.

Ground J states: "The learned Chief Magistrate erred to rely on evidence which had been, wrongly admitted especially the alleged admission of the appellant at the time of arrest". •X

Learned counsel for the appellant submitted and the record of the proceedings supports him that he objected to admissibility of the alleged admission of stealing Shs. 12M/= by the appellant.

As the record (typed) shows, defence counsel first objected at the earliest opportunity during the trial when PVJ1 was testifying about the alleged admission by the appellant, ^hat the admission was made to and after appellant's arrest by D/AIP Kototyo William (PW28) in the presence of D/AIP Wanitho and two other senior military officers on 12th March, 1991• That the /22

admission was oral. Instead of holding a-trial-within-a-trial at

*22*

tte't stage, the learned Ag. Chief Magistrate pre-emptively overruled defence counsel after a brief reply by the State Attorney contending that the statement was not a confession.

Mr. Ayigihugu submitted that the statement was wrongly admitted. That if appellant had made any incriminating admission he should hav.e been properly cautioned in terms of Rule 10 of the Evidence (Statements To Police Officers) Rules (Statutory Instrument 4j-1) and that the Statement should have been written down.

Counsel for the respondent submitted before me that the evidence was properly admitted. First ^I don't think that those rules prohibit admission of any oral statement to a police officer of relevant rank provided the suspect is properly cautioned. I find nothing in the- case of Balbir S. Joshi Vs. Rex /195Z17 18 E. A. C. A 228 to support the view that any statement made to a police officer must be reduced into writing. What that case and the other cases and those rules appear to emphasize is the precaution to be taken before recording a statement which may subsequently be used in evidence against a suspect. (See Rules 4,5,6 and 7). And this is also stated in Section 24 and 25 of Our Evidence Act as amended. The difference made in the present case is that the police officer claimed that he told appellant he would write down the statement. It is the voluntariness and truth and correctness of the statement if it was made which arc crucial. See the cases of Tuwamoi Vs. Uganda /19&77 33. A. 84 .and inferences to be drawn from page 11 of Judgment of the Supreme Court in Cr. App. No. 16 of 1988 (E. Nsubuga Vs. Uganda).

......... /25

In that regard there are decided cases which have time and again sot out the procedure to be followed. Those cases require the trial court to hold what is called "a-trial-v/ithin-a-trial" before a disputed or repudiated statement - be it written or oral - is admitted or rejected. See Kinyori S/0 Kirudit^. Vs. R. /195§7 23 EACA 480; Waibi Vs. Uganda /19787HCB. 218; Sserwada Vs. Uganda /197§7 HCB 175 the new famous case of Tuwamoi' Vs. Uganda /19&77 EA. 84 and Uganda Supreme Court Cr. App. No. 5 of 1987 (Aramanoni Kampayani Vs. Uganda (unreported). What is the position i© the present case? The appellant denied making the alleged incriminating statement. The prosecution asserted that he made it.

In the present case PW1 claimed in his evidence (page 7 of the record) that after accused had been arrested in his (PW1's) office, ''accused admitted that he used ISO money with intent to refund it", Mr. Ayigihugu objected to its admissibility. Instead of holding a trial within a trial, the learned Ag. Chief Magistrate overruled defence counsel after hearing a submission by State Attorney holding that the statement was not a confession. Interestingly, later in his judgment the learned Ag. Chief Magistrate treated the statement as a confession. This alleged admission is not like that in case of Z. Javuru Vs, Uganda, Supreme Court Cr. Appeal No. 13 of 1984.

Again when PW22 (D/AIP Kototyo) testified about the alleged confession by appellant, appellant's counsel made a-balated objection to the admissibility of.the statement. After some submission by State Attorney in support of admissibility of the statement, the learned Ag. Chief Magistrate again ruled that the statement was admissible. The principal reason at this stage for admitting

....... /24

the statement is, with all due respect to the learned Ag. Chief Magistrate.strange. In his own words he stated, inter alia;- ''Counsel should have been on his guard as what is already recorded constitutes part of the record, it would also be improper for rne at this stage tc make any finding as to the admissibility of any piece of evidence on record".

It is true this other objection was raised rather late. But the admissibility of the same statement was erroneously allowed was when PWl/testifying. Further the witness (PW22) was still testifying. He was still under cross examination which indeed continued for some time aftef the ruling. The reason given amounted in my view to abdication of court's duty and responsibility to ensure- that only admissible evidence is admitted. Perusal of the judgment shows that the alleged confession or admission was taken as part of the evidence against the appellant. At page Vi of judgment the Chief Magistrate stated ''The above statement made by the accused can constitute sufficient evidence" Thus even though towards the c-nd of his judgment the learned Ag. Chief Magistrate hold in effect that the rest of the prosecution evidence was sufficient independently of the admission the statement which Chief Magistrate held not to be a confession earlier was relied on. The reasons given by learned Ag.. Chief Magistrate for admitting the alleged statement *of* the appellant are not valid.

I am also very doubtful whether the appellant made any incriminating statement cither in the form stated by PW1 or in the form stated by PVJ22.' First if the appellant was cooperative,

...... /25

2^

as PW22 appears to suggest, there is no sound reason why PW22 chid not or could not write the Statement. After all PW22 had allegedly warned appellant that whatever he would say may be written down (see Rules 7 to 9) and may be used in evidence during appellant's trial. PVJ22 spent half an hour with appellant in the office of PV/1 . PVJ22 appears to have been instructed to arrest appellant because of alleged theft of Shs. 12M/= by appellant. **If** accused was valunteering valuable information at that early stage, there is no earthly reason why PV/22 could not put the admission in writing for all that period. There is another reason why I doubt whether the statement was made as claimed or at all. The version given by PW1 differs from that of PVJ22. This affects its accuracy. At page 7 in examination in-chief PW1 is quoted thus ''The accused admitted before me that he used ISO money with intent to refund it". But at page ³ in crossexamination he answered "The accused told me that he had used part of money with intention of refunding it" These two do not mean the same thing, PW1 was testifying hardly two months after the alleged statement. Yet he gave two versions of the statement.

PW22 claimed that appellant requested him to say something which was (page 82 of record):- "1 am aware about the Shs. 12 million in question. I was hard up. I used the 12 million shillings in question to solve my personal problems with a view of refunding it. The refund hasn'^t been made yet". This is more detailed than PW1's version. The accuracy of this statement differs from ghe two by PW1 quoted above. Yet the statement is supposed to have been made in the presence of PW1 and PW22, among others. PW22 was testifying three months after the alleged

....... /26

s'tr.temnfc was inc.dc. '• As each of the other senior officers were present, during a-trial-within-a trial, any of them could, if need arose have been called to say what actually transpired. This would have assisted court to make up its mind about the credibility of PW1 and PV/22 concerning admissibility of the alleged incriminating admission since the accounts of PW1 and PV/22 differed.

Further I find it remarkable, if not incredible, that after PV/22 warned the appellant that whatever the appellant chose to say would be taken down and could be'used in evidence which is what the rules stipulate, FW22 could hear such incriminating admissions from the appellant and instead of noting those words in any written form casually let the statement slip away with the wind. Yet in contrast on the same day (12/3/1991) and scon after that alleged admission, PV/22 *saw* it fit to record down items found in the office and the residence of the appellant. Some of those items wore plainly innocuous. Yet PV/22 took trouble to cause appellant to sign that record which was witnessed by the two same senior military officers (See Exh; P.14). PV/22 claims he was in a hurry to do the search, so he did not record the alleged admission. Then why not write' the confession on same day at time of recording of and signing for these other items?

On 22nd March, 1991? the appellant male an inquiry statement (Exh. P. III) and charge and caution statement (Exh. D.1V) wherein he denied stealing the- money. The prosecution didn't attempt to

....... /27

adduce these statements during trial. Yet the prosecution chose to adduce during the trial an oral statement. Further the appellant denied making any incriminating statement as claimed. At the trial as in Exh. D. IV appellant stated that the money was used in operation or operationally covered.

In view of the conflicting versions of alleged confession and in the light of the claim by PW22 that he was in a hurry so he could not record the alleged statement (which hurry is questionable because he was in office of PV/1 for JO minutes) I cannot certainly say that PW22 cculd recollect the proper account of what the appellant might have stated on 12th March, 1991• The inconsistent versions given by PW1 and PW22 makes it improbable that the appellant made any admission at all or in terms preferred by either of the two witnesses.

In Sserwadda's case, the Court of Appeal for Uganda stated (See page 1?6):- "¹ . A court faced with an alleged confession ought always to consider these two main factors:- The question of its admissibility and this is considered at »'a trial within a trial" and here the court must be satisfied that the confession is a voluntary confession and that the evidence of the incident and what was said is correct and true. If court is not satisfied that these requirements exist then it does not admit the statement". The same principle was. restated by the same court in Waibi's case.

The successor court - Supreme Court of. Uganda has repeated that view in a number of its decisions: See, for instance, page 9 of its judgment in Kampayani's Cr. Appeal (Supra) and page 15 of its judgment in Cr. Appeal No. 24 of 1989 (Isaya Bikumu Vs. Uganda) ; /P^o Most of these decisions deal with written extra-judicial statements/confessicns. But it is my view that the principles therein stated apply with equal, if not more force, with regard to alleged oral admissions, as in the instant case. For in cases of alleged oral admissions there appear to me to be a higher risk of inaccurate remembering of contents of alleged admissions which is too dangerous in criminal trials. A criminal trial cannot be based on dangerous inaccuracies in evidence.

At page 9 of Kampayani's appeal, the Supreme Court had this to say: "Where . .... a trial within a trial is not held to decide the admissibility of alleged confession, *vie* think that the trial judge should equally satisfy himself whether the alleged confession was voluntary just as he would where a trial within-a-trial is held. Since it appears .in the instant case that the conviction of the appellant depended so much on his alleged confession, we consider that the learned trial judge's failure in this regard would have occasioned a failure of justice if it (statement) had not been valueless". The conviction of the appellant was quashed. In my view the court, in this case, did not satisfify itself on the correctmess or accuracy and truth of alleged confession. I cannot say that appellant received a fair trial where his alleged confession is wrongly admitted. The Supreme Court in Bikumu's appeal quoted with approval, at page 15 of its judgment, the following passage from the case of Tuwamoi Vs. Uganda (Supra)(See 1967-EA at page 91) regarding the duty of a trial court concerning confessions . (or admissions):-

"The legislatures in these countries (East Africa) have recognised the very real danger that exists of confessions being

/29

improperly obtained or indeed of being deliberately falsefied, and have laid down the standard required and the various safeguards applicable. The courts have also been alive to this danger and have by numerous decisions over the years stressed the caution to be exercised by the trial courts, and it is from these decisions that the present rule of practice or prudence has evolved. But this rule does no more than stress the care with which a court should act in dealing with a confession.

'7e would summarise the position thus - a trial court should accept any confession which has been retracted or repudiated with caution, and must before founding a conviction on such a- confession be fully satisfied in all the circumstances of the case that the confession is true......"

This quotation was alluded to by-' the Supreme Court when considering a statement which appeared to have been actually made but the appellant contended that it was extracted from him under duress. In the appeal before me there was no written' statement by the appellant and the appellant denied ever making any oral confession. That made it imparative that the trial court, in the present case, should have taken all necessary precautions to ascertain whether first the alleged statement was ever made. If made whether it was jrrue. In my considered view the trial court failed to take those necessary precautions before first admitting the alleged confession and secondly using it as evidence against the appellant. •. •

Considering all the evidence on record and the submissions made ^I hold that there is no justification for the view that the appe

........ /50

llant confessed to stealing Shs. 12K/=. In the result ground throe succeeds.

The- claim by P',729 that appellant's brother advised him to say that Shs. 12l</ = was from his office is hearsay or even innocuous and has no evidential value against the appellant. If anything were at cached to it, it shows appellant was frank. He didn't tell PW29 to hide.

I my view the conduct of PW29 added to the evidence of PW21 (ACP Okumu) about p'5/29 would, if I hold the appellant to have stolen the Shs. 12M/=, have put PVJ29 on the Status of an accomplice. His evidence had to be treated with great caution.

Actually my conclusions on grounds 2 and J effectively disposes of this appeal. Consideration of the other grounds is essentially academic now.

I shall therefore refer to the submissions on those other grounds briefly, where necessary.

On the first ground the gist of the submissions have been alluded to earlier. On what constitutes the offence of embezzlement, I reiterate the view I expressed in H. C. Cr. Appeal No. 27 of 1990 (B. Ssenyondo Vs. Uganda) (unreported) that the offence is committed by a servant where the servant intercepts property intended for his employer before the employer acquires possession or ownership'of the property thus interecepted. This is the essence of the decision of R. Vs. Davenport /^95^7 ¹ S3 \*" W. L. R. 569 which is a decision of considerable persuasion. That case dealt with the pre-1968 English Law which is essentially the same law which was enacted in Section 257 of the Penal Code Act

....... /51

as amended by Statute 5 of 1987. The law on this subject is dealt with at great length in Chapter 61 of Volume 2 of Russell on CRIME, 12th Edition, pages 1062 to 1108. See particularly pages 1077, 1083, 1096 up to 1108.

The learned Ag. Chief Magistrate relied on the case of In Governor Re C of Pentinville Prison, Exparte Osman (The Times App. of April 13th 1088) reported in Vol. 2, Archbold, Criminal Pleading, Evidence and Practice, 4jth Ed, page 1399 para l8-12fc and held that debitting of ISO account and creditting of appellant's account on 25th January, 1991 constituted theft. I have been unable to get the full facts of that case. put the case appears to have dealt with the- law of theft in one of the states of USA as it was in 1988 which law is not available and was mentioned in Archbold when discussing section 3 of the English Theft Act, 1968. The quotation that ''the court seems to have gone one step further in holding that a theft of funds in a bank account was c'/rapj^tc '..iion a cheque was dishonestly drawn on the account without authority. The theft was completed in law even though it might not be completed in fact until funds had been debitted" has more in it than what meets the eye and appears to be an expression of opinion was on the law of that state of USA and. Theft Act, 1968. Perusal of the whole of para 18-12^ shows that that case is inapplicable here. The passage from the case of In Re Footman Bower & Co., Ltd. /19617 2 All ER at page 38 of the judgment appears to support the views advanced by Ayigihugu to some oxtent. Appellant's counsel referred to the 8th Edition of paget»s Law of Banking, Chapt. 4 (pages 84 and 87) and to the 9th Ed. of The Practice and Lav/ of ............

Banking by Sheldon and submitted that money which was in the bank more belong to the bank and therefore / • debitting and crediting did not constitute taking which is an element in the offence of theft\* This view is supported by judgment of the Court of Criminal Appeal in Davenport'^s case. At page ⁵⁷¹ of the report (195^)Goddard L. J., delivering the judgment of the court stated this:-

"If ^I pay money into my bank either by paying cash or a cheque that money at once becomes the money of the banker ... When the banker is paying out, whether he pays in cash over the counter or whether he is crediting the bank account of somebody else, he is paying out his own money, but he is debiting the customer's account The customer has a chose in action, that is to say, a right to expect that a banker will honour his cheque. Therefore, in the present case, the money paid on these cheques was the banker's money, but it lead to the customer's account being debitted it is obvious that he (Devenport) could not be convicted of larceny because he did net steal the company money. He merely caused their account to be debited". The facts in that case were not dissimilar to the facts in the present case save that in Davenport's case there was evidence of fraud. There is not fraud in the present case. In the case of Shiv Kumar Sofat Vs. R. /19577 EA. 840 which counsel for the appellant relied on,there was fraud obviously, but the essence of the decision is that although Kumar got the cheques and depc£ ited most of them on his accounts in banks, there was no actual -viking or receipt of money except in one count. Similar sentiments are in the case of Menzour Ahmed Vs. R. /1957? SA. 386.

......... /33

In Section 2^5 (5) of the Penal Code Act it is there stated "A person shall not be deemed to take a thing unless he moves the thing or causes it to move" That is an essential element in the offence of theft and of Embezzlement. That statement forms part of the reasons given by courts in both cases of Davenport and that of Kumar and I agree with then?. And see interpretation of an identical provision in S. 268 (5) of Penal Code of Kenya in the case of Larunyani Vs. Republic /19687 EA, 10? at page 108,

Therefore even if grounds 2 and J had not succeeded, ground ¹ would succeed. The State Attorney had submitted that in case of faults in Chief Magistrate's findings, I should apply S. 3^+7 of Cr. P. Code. He probably meant S. 331 ("I) because S. 3^7 was repealed by the Trial on Indictments Decree 1971\* But there is no justification for this course.

Mr. Ayigihugu has submitted that an accused cannot be convicted of simple theft if the charge of embezzlement collapses. His view is that theft is not minor and cognate to embezzlement. As I said eriler this argument would be best considered in the light of the provisions of Section 1^3 and an appraisal of the significance of sections 1^9 to 153 of the Magistrates Courts Act, 1970. No decision is called.for from me at the moment without receiving adequate arguments on these sections. However, without deciding, I can say that it would be a travesty of justice if where there was cogent evidence of theft a person charged with embezzlement were acquitted. My holding on grounds 2 **and** 3 affect the substratum of the appeal. So ^I can't now speculate.

.....

I find it unnecessary to consider submissions on Grounds \*+ and 5, though by considering ?VJ29's evidence I have adverted to ground •

On Ground 7 !-lr. Hczida for the appellant criticised the counscquential Orders of the trial Magistrate.

He submitted that the Court's Order, .for appellant to refund Shs. 12iI/= is erroneous because S. 259 authorises court to make orders for compensation and not 'for refund. Mr. O'jok supported the trial court's order for refund and submitted that it was lawful. Section 259 states ''Where a person is convicted under Sections 257 and 258, the court shall, in addition to the punishment provided therein, order such person to pay by way of compensation to the aggrieved party, such sum as in the opinion of the court is just, having regard to the loss sufferrod by the aggrieved party

exercise The court is empowered to judicial discretion when making a compensation order. The wording of the Section doesn't limit the amount of compensation. Presumably the issue of monetary, jurisdiction of the Magistrate making the order is irrelevant. But as a matter of common sense I doubt that compensation would exceed actual loss. Apart from the words used,it appears to me that the order for compensation of Shs. 12M/= would not contravene section 259 if there had been evidence justifying conviction.

However I find there was no justification for the making of the additional order for Shs. 11,532,^7^/= us the account was held by ISO which can withdraw the money. The only requirement v/ould probably be to have another signatory, if needed. The second order was superflous.

Before concluding, I ought to repeat what 1 said in Sengendc's \_ap.pe.al. The substitution of the old Sections 257 ....... /35

5^

and 258 by the new Section 257 has complicated rather than simplified the operation of the law of theft or rather embezzlement by servants or employees. The legislature may have to review the law without necessarily reviewing the penalty part.

For the reasons I have endeavoured to give my conclusion is that this appeal must succeed. I accordingly quash the conviction of the appellant. The sentence of five years imprisonment is set aside, The consequential orders made by the trial court are set aside. Unless the appellant is held on some other lawful charge, he is set free forthwith. If any money has been paid by or recovered from appellant in pursuance of the said orders, the money should be refunded.

16/6/1992.

18/6/1992 at 10.01 a.m.

Appellant present.

Ayigihugu for appellant.

Ojok for State.

Wagaba court cleark.

Judgment delivered in open court in presence of the above.

JUDGE 18/6/1992