1.

INTRODUCTION TO PROPERTY RELATED OFFENCES

Offences against property are the crimes that affect another person's
rights of ownership (or in some cases possession or control). The main
offences against property are theft, offences of deception and making off
without payment, criminal damage, arson, forgery, and forcible entry. It
is important to note that some offences against property, such as
burglary, robbery, and blackmail, may also contain elements of offences
against the person. Other offecnces also include corruption,
embezzlement, causing financial loss and abuse office.

2.1 THEFT AND RELATED OFFENCES

2.1.1 Theft
The objective of the offence of theft is to prevent prejudice or unlawful
appropriation of property belonging to other persons. Under section 254
of the Penal Code Act, a person commits the offence of theft if he;
fraudulently and without claim of right takes anything capable of being
stolen, or fraudulently converts to the use of any person other than the
general or special owner thereof anything capable of being stolen.

Key ingredients of the offence of theft

(i) Fraudulent
In order to constitute theft, there must be an element of fraud.
Accordingly, if a man picks up a thing merely to ascertain what it is, this
is a mere inquisitive taking which is not theft. An intention to
permanently deprive may exist if it is proven that there is an intention of
the accused to treat the thing as their own to dispose of, regardless of
another person’s rights in the property.1

In considering whether or not there exists fraudulent intent, reference

must be made to section 254 (2) of the Penal Code Act which enumerates
the intents that show that the taking or conversion was fraudulent.
These are discussed below.

a. An intent to permanently deprive the general or special owner of the

thing of it.
Theft requires an intention permanently to deprive the other of his
property. The intent must not be merely to deprive the owner of the thing
temporarily. So if A takes B’s shirt intending merely to wear it to dance
and return it to B afterwards, or where one takes one’s car for an event
and return it afterwards, in both instances there is no theft committed.
But if it is proved that when A removed the property he intended to

1
R v Fernandes [1996] 1 Cr App R 175, 188 (Auld LJ for Auld LJ, Mantell and Sachs JJ).

1
deprive B permanently of it but afterwards changed his mind and
returned it, it is theft.

There need not be any permanent deprivation in fact. D may be guilty of

theft even though P is never in any danger of losing his property so long
as D appropriates with the intent. 2 Conversely, the fact of permanent
deprivation is insufficient if there was no intent. But it must be clear that
the facts- the history of what D did with the goods – will often have an
important bearing on the proof of D’s intent. 3 If for instance D is found
respraying the car which he took from P without his permission, it can
easily be inferred that D’s intention was to deprive P permanently of it. In
every case, is for the court to determine on the evidence whether D did so
intent.

R v. Williams (1953) 1 All ER 1068

A conditional taking, that is, with intent to keep only such of the goods
as are valuable is not sufficient. Thus if D opens P’s car or a box
belonging to P, intending to steal anything that may prove to be of value,
he may be convicted of attempting to steal property belonging to P
though, in the result, he finds nothing in the car or box that he considers
worth stealing. R v. Eason,4 a policewoman placed her handbag on the
floor in a cinema hall. The accused who sat behind her took it and
searched it for money which he intended to steal. There was no money in
it but cosmetics tissues. He quickly placed it back. His conviction for
theft of the handbag and its contents was quashed because he did not
intend to deprive her permanently of them.

Section 254 (2) (a) also protects the rights of a person who, though not
the owner of the property, has some special interest in it. The term
special owner in the section includes a holder of a charge or a lien or any
right arising from or dependant upon holding or possession of the thing.
A lien is the right to hold property of another as security for the
performance of an act. For example, if A takes his shirt to a tailor for
mending and then in order to avoid paying the bill he subsequently
removes it secretly, this is stealing because he has thereby deprived the
tailor of his special property called a lien to the shirt.

b. An intent to use the thing as a pledge or security. This happens where A

takes B’s goods and intends to pledge them or give them to another

2
Smith & Hogan p. 497
3
Ibid

4
(1971) 2 All ER 945.

2
person as security or a loan of money, this amounts to a fraudulent
intent because it is an obvious assumption of the rights of the owner.

This happens where for example X who has never driven a car tells Y
that he can drive properly. Y doubts this. They make a bet and Y stakes
his wrist watch. X takes Z’s wrist from a nearby table and stakes it. The
watches are handed over to A on condition that he is to give both of them
to the winner of the bet. This is theft.

c. An intent to part with it on a condition as to its return which the person

taking or converting it may be unable to perform.

d. An intent to deal with it in such a manner that it cannot be returned in

the condition in which it was at the time of the taking or conversion.
For example if A removes B’s pair of trousers and alters them to a short,
there is a fraudulent intent to constitute theft. But if he merely removes
the button from the trousers, although when he returned they are not in
the same condition as they were when removed, this may be theft of the
button and not of the trouser. This can be illustrated by the Queensland
case of R v. Bailey.5 In this case, A used B’s car for three days without
B’s knowledge or permission. There was a gallon of petrol in the car
when A removed it and this he used for driving it. He was charged with
theft but the court held that the wear and tear of the car caused by using
it in the way A did, was too slight to establish an intent to deal with it in
such a manner that it could not be returned in the condition in which it
was at the time he removed it. The court held, however, that A could
properly be convicted of stealing petrol in the car.

e. In the case of money, an intent to use it at will of the person who takes
or converts it although he may intend to repay the amount to owner. A
person is deemed to use money at his or her own will, if that person
deliberately or recklessly exceeds the limits of authority allowed to him or
her, or deliberately or recklessly disregards any rules of procedure,
prescribed by the owner in respect of the money.6 For example, where a
person collects money from certain person as deposits for sending them
to USA on scholarship. He does not send them and does not refund the
money on demand or at a reasonable time thereafter. This amounts to
theft; or where one receives money from housing finance on a piece of
land which he/she mortgages to the housing finance company. He/she
instead uses the money for election campaigns. This amounts to theft
because the money still belongs to the finance company until you use it
for a specific purpose for which you received it.

5
(1924)QNN
6
Section 254 (3).

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A person who takes money without the owner’s consent cannot plead, as
a defence, the intention of afterwards repaying the money. It has been
suggested by various authors that this does not cover the situation
where a person helps himself for another’s money to obtain change and
make immediate or later payment.

In Kizito Ronald V Uganda,7 the trial Magistrate convicted the appellant of

theft of a sum of shillings 5,000,000/= contrary to sections 254(1) and
261 of the Penal Code Act (Cap. 120). He sentenced the appellant to pay
a fine of shillings 500,000/= or in default thereof to serve a term of 18
months in prison. In addition, the said Magistrate made an order under
section 197 of the Magistrates Courts Act (Cap. 16) requiring the
appellant to pay a sum of shillings 4,200,000/= as compensation to the
complainant. The above decision, sentence and order aggrieved the
appellant. Therefore, he appealed against them.

The facts of the case were that Sometime in March 2005 one George
William Kanyike (PW3) obtained a loan of shillings 5,000,000/= from
Pride Uganda Microfinance. He kept the money at his home; and traveled
upcountry. In his absence, the appellant and another man (who were
both related to Kanyike’s family) visited Kanyike’s home. They duped
Kanyike’s wife (Cissy Kanyike i.e. PW4) into giving them the above sum of
money. Therefore on returning to Kampala, Kanyike confronted the
appellant in respect of the above sum of money. The appellant promised
to refund the money, but ultimately failed to honour his word. Kanyike
reported the matter to the police. In turn, the police arrested the
appellant and Ssebavuma. While in police custody Ssebavuma confessed
that he and the appellant got the above sum of money from Kanyike’s
wife. Eventually, the police took the appellant and Ssebavuma to the
Magistrate’s court where the State charged and prosecuted them for
theft.

In his defence the appellant denied having received a sum of shillings

5,000,000/= from Kanyike’s wife in March 2005. In addition, he
questioned whether Kanyike had the capacity to possess such a huge
sum of money. After considering the evidence on record the learned trial
Magistrate was satisfied that the appellant was guilty of the offence of
theft contrary to sections 254(1) and 261 of the Penal Code Act (Cap.
120). The appellant appealed the judgment of the lower court on the
grounds that the trial Magistrate failed to evaluate the evidence on
record, failed to consider discrepancies and contradictions in the State
witnesses’ evidence, and relied on a confession which was retracted, to
the effect of reaching a wrong conclusion.

7
HIGH COURT CRIMINAL APPEAL CASE NO. 0014 OF 2008

4
The issue on appeal was whether the State proved beyond reasonable
doubt that the appellant committed a theft against George William
Kanyike. In order to be able to assess the State’s evidence properly, it is
vital to understand what amounts to theft under our law.

According to section 254(1) of the Penal Code Act (Cap. 120) a “person
who fraudulently and without claim of right takes anything capable of
being stolen, or fraudulently converts to the use of any person other than
the general or special owner thereof anything capable of being stolen, is
said to steal that thing”. However, section 254(2) of the Penal Code Act
(Cap. 120) further distinguishes that in the case of taking money, a
person is deemed to have fraudulently taken it where he or she does so
with “an intent to use it at the will of the person who takes or converts it,
although he or she may intend afterwards to repay the amount to the
owner.”

Thus in order to justify the conviction of the appellant in the lower court,
the State must show that the evidence they presented to that court
proved the following things beyond reasonable doubt:
(a) that in March 2005 Kanyike, at his home, had a sum of shillings
5,000,000/= that was capable of being stolen;
(b) that the appellant participated in fraudulently taking the above sum
of money; and
(c) that the appellant had no claim of right to the said sum of money.

Wainaina v R (1959) EA 601

R v Williams (1953) 1 QB 660

ii. Claim of Right

A person has a claim of right where he honestly asserts what he believes
to be a lawful claim even though it is unfounded in law or fact. An honest
claim of right may exist even where the accused takes by force against
the will of the owner or where he demands money with menaces. On the
strict construction of the definition under section 254, a claim of right
may be interpreted as a defence to taking and not a defence to
conversion. However, claim of right is a defence that relates generally to
offences against property and it has been suggested that it can apply to
conversion.

According to section 7 of the Penal Code, a person is not criminally

responsible in respect of an offence relating to property if the act done or
omitted to be done by the person with respect to the property was done
in the exercise of an honest claim of right and without intention to
defraud. Although this defence is usually raised in cases of theft, the

5
section covers all offences relating to property. It should be noted that
the section does not require reasonableness. All that is necessary is that
the claim of right must be an honest one. Bonafide claim of right is
closely related to the defence of mistake of fact only that in this case, the
accused is only mistaken in his belief that he is entitled to claim some
property. It is a defence in a charge relating to an offence relating to
property. The accused has to show that he was acting with respect to any
property in exercise of an honest claim of right and without intention to
defraud e.g. a person seizes the complainant’s property in order to
enforce payment of the debt. The defence will also stand even where the
right asserted by the accused is mistaken. In Ngavana v R,8 the appellant
was charged with the theft of the heifer and claimed that it belonged to
him. The appellant’s animal had gone missing for some six months and
the appellant took the animal from the complainant’s land claiming that
it was his missing animal and called evidence to this effect. The
magistrate held that the animal was the complainant’s property and that
therefore the appellant could not have a claim of right to it. On appeal, it
was held that where the accused reasonably claims property as his, even
if he is mistaken, he must be acquitted.

In Francisco Sewava v. Uganda,9 the appellant was acquitted on appeal

when he had been convicted of stealing doors and roofing materials that
he claimed as his and which claim he had put forward at his trial at his
trial. It was held that however unfound the claim might be, the appellant
should not have been convicted.

In Kamori Johnson v Uganda,10 it was held that the defence of claim of

right is not available where the appellant claimed that the property
belonged to some other person and not him.

iii. Taking (asportation)

This means carrying away or any removal of anything from the place
which it occupied. Taking is the actus reus in the offence of theft and
includes detachment of anything as well as obtaining possession. It must
always be proved that the accused took the property in question. In the
case of Lerunyani v R,11 a passer-by saw the accused sitting outside a
cattle boma. On enquiring about buying a cow in the boma, the accused
told the passer-by that the cow was owned by him (the accused) and the
accused agreed to sell it to a passer-by for Shs. 40/= and five goats. The
passer-by gave the accused Shs. 40/=. The true owner of the cow then
appeared and stopped the transaction from going further. In the
magistrate’s court, the accused was convicted of stealing cattle and he
8
[1972] EA 559.
9
MB 60/66
10
[1995] V KALR 57.
11
[1968] EA 107.

6
appealed. It was held that there was no ‘taking’ of the cow within the
meaning of section 268 (1) and (5) (now 263) of the Penal Code and there
was no ‘conversion’ of the cow. Accordingly, the offence of theft had not
been proved.

To constitute taking, it is not necessary for the thief to take the thing
completely into his physical possession. He is deemed to have taken the
thing if he moves it or causes it to move 12 and the process is complete
even with a slightest movement even if the item is abandoned thereafter.
For example if A intending to steal a book from B’s briefcase begins to
takeout the book whereupon B suddenly shouts at him and he drops it
back into the briefcase. A’s conduct amounts to taking and not merely
attempt to take. The test to be applied to determine whether asportation
has taken place is whether each and every atom of the thing has left the
place into which it was before it was removed.

R v. Taylor (1911) 1 KB 674

In Kifuko v. R,13 the accused who was working in a post office took a
parcel from the foreign parcels rack and put them in the locker parcels
rack. The issue was whether he was guilty of theft. His defence was that
he did not take the parcel into his possession and was not guilty of theft.
It was held that once it is proved that an accused removed an article
from one place and placed in another place with the intention of
depriving the owner permanently from it is guilty of theft. The issue is
whether the item has left the place in which it was in before. If the
answer is yes, the accused will be said to have taken the property.

Taking may also be constructive, for example where a person gives

apparent consent to taking but his consent is vitiated by a trick,
intimidation or mistake.

In Mapunda v R,14 the appellant was convicted of unlawfully hunting an

elephant and stealing its tuskswhich were the property of the
government. After shooting the elephant, the appellant obtained a licence
and returned for the tusks. He obtained the tusks from the villagers who
had found them and took them to the appropriate officer to obtain a
certificate of ownership. For the appellant, it was argued that the offence
was not one of theft but of cheating or an attempt at stealing. It was held
that the appellant stole the tasks when he took possession of them. His
subsequent actions in attempting to obtain a certificate of ownership
were merely evidence of his intention permanently to deprive the owner
of them. It was further states that the offence of stealing is the
deprivation of possession not ownership- the theft is committed when he
12
See section 254 (6) of the Penal Code
13
ULR 273
14
[1971] EA 413

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wrongly removes the goods with the necessary intent- that is, in this
case, permanently to deprive the owner of it. That a thief obtains no title
to the articles stolen. A short example might illustrate this. a thief steals
a car and then subsequently attempts to have the vehicle registration
book altered in his name. The theft here is committed when he takes the
car, and the subsequent attempt of registration would be evidence of his
intention permanently to take rather than borrow the car but the offence
would be committed when he unlawfully took the car.15

iv. Things Capable of being Stolen

It is not that everything can be stolen. Section 253 contains a list of
things capable of being stolen and they are of two categories; inanimate
things and animals. Every inanimate thing, which is the property of any
person and which is movable, is capable of being stolen. An inanimate
thing which is the property of any person and which is capable of being
made movable is capable of being stolen as soon as it becomes movable,
although it is made movable in order to steal it. There must be an owner
who must be named in the charge sheet. However, if the owner cannot be
traced, the presumption is that most inanimate things have owners and
the charge sheet will state that it is the property of a person unknown.

Valueless things such as rubbish cannot also be stolen. In Kyewawuna v

Uganda,16 the accused was working in the Bank of Uganda. The
government had just changed a new currency for old ones. He stole some
of the old currency and he was charged with theft. It was held that while
the old currencies were owned, they were useless to the bank. They were
of no value to the bank.

Williams v. Phillips (1957) 1 AC 5

Hibbert v. Mckierakn (1948) 2 KB 142

A human corpse is incapable of ownership but the coffin, burial clothes

and jewelry are things capable of being stolen since they are a property of
a person who provided them.

Incorporeal- things without body or not of material nature, for example

telephone, electricity cannot be stolen. There are, however, offences
created under the respective legislations for illegal use of such services.

The property must be movable to be capable of being stolen. Land and

buildings cannot be stolen because they are immovable. However, a
window or any other fixture detached from the house is capable of being
stolen.

15
Ibid, p. 415
16
(1974) EA 293.

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v. Conversion
Conversion was defined by Atkin J. as he then was, in the case of
Lancashire and Yorkshire Railway Co. v. Mac Nicol 17 as dealing with
goods in a manner inconsistent with the right of the true owner provided
that it is also established that there is an intention on the part of the
accused in so doing to deny the owner’s right or to assert a right which is
inconsistent with the owner’s right.

It is intended to cover a situation where a person lawfully in possession

of a thing belonging to someone else wrongfully appropriates it to some
other person. It differs from taking in that there is no need for removal of
the thing. It is important to note that for conversion to amount to
stealing, it must be done with one of the fraudulent intents as specified
under section 254 (2).

For example, where a person was lent property and then determined in
his own mind to sell it for his own benefit contrary to the terms of
bailment, he had determined that in relation to the property he would no
longer be a borrower but an owner, and an owner wishing to sell; when
he proceed to carry the intention into effect by offering the property for
sale, he had already converted the property to his own use whether the
attempted sale takes place of not.18

Patel v R (1962) EA 509.

2.1.2 Special Cases

Theft by finding
Where a thing capable of being stolen is lost by the owner, the finder of
the thing is guilty of theft if he coverts it and at the time of the
conversion the finder knows who the owner is or he believes on
reasonable grounds the owner can be found. That is to say, the
conversion or taking will not be deemed fraudulent if at the time the
person taking or converting the thing does not know who the owner is
and believes on reasonable grounds that the owner cannot be traced.
Dutt v R (1959) EA 235

If, however, the finder takes possession of property intending to look for
its owner and restore the thing to him, he does not assume the rights of
the owner and does not commit theft.

Theft by Mistake

17
[1919] 88 KB 601 at 605.
18
See the case of Rogers v Arnortt [1960] 2 QB 244. Followed in Morjaria v R, [1972] EA 10.

9
This is constituted in circumstances which are similar as the principles
governing mistake of fact. It will be theft by mistake where there is a
mistake by the transferor as to the identity of the transferee whether or
not ownership passes. An example is where a cheque is given to a wrong
person who shares the same name with the intended recipient and the
person knowing that the cheque was not intended to him goes ahead to
cash it. Another example is where an employee obtains an advance on
his monthly salary and later on is paid the full amount, he would have
dishonestly appropriated the excess sum.

Theft by Trick
This is where the owner of a thing actually transfers possession of the
thing capable of being stolen to a thief by some kind of trick. In this case,
the owner does not consent to be permanently deprived of the thing. An
example is where the owner passes possession of a thing under a
contract of repair and the thing is appropriated by the repairer or where
a customer who has been handed the goods by the shopkeeper then
walks out with them without paying.

However, theft by trick must be distinguished from obtaining by false

pretence whereby the offence of false pretence involves a situation where
the owner consents to be permanently deprived of the thing.

Situation of Husband and Wife

In the case of spouses, they are incapable of stealing each other’s
property. However, a person who procures one spouse to take the
property of another spouse may be charged with theft. 19 For example a
boyfriend who procures a wise to steal from her husband is guilty of theft
even though the wife is protected by immunity which attaches to
marriages.

3.Cattle Rustling
Under section 266 of the Penal Code, the offence of cattle rustling is
committed when a person:
(a) moves from a community where he or she is ordinarily resident to
another community and steals or attempts to steal any cow, bull, ox,
ram, ewe, wether, goat, pig, ass, mule, horse, mare, gelding or camel, or
the young of any such animal from that other community and who at the
time of, or immediately before, or immediately after the time of the
stealing or attempted stealing, uses or threatens to use a deadly weapon
or causes death or grievous harm to any person;

(b) organises the stealing of the animals mentioned above and in the
manner provided above; or

19
Section 260 of the Penal Code .

10
(c) without lawful excuse or authority, is found in possession of any of
the animals mentioned above which is proved to have been stolen in the
manner provided above. The burden to prove that the animal is lawfully
held lies on the accused.

4. OFFENCES ALLIED TO STEALING

4.1 Concealing registers

Under section 276 of the Penal Code Act, any person who, with intent to
defraud, conceals or takes from its place of deposit any register which is
authorised or required by law to be kept for authenticating or recording
the title to any property, or for recording births, baptisms, marriages,
deaths or burials, or a copy of any part of any such register which is
required by law to be sent to any public office, commits a felony and is
liable to imprisonment for ten years.

4.2 Concealing wills

Under section 277 of the Penal Code Act, any person, who with intent to
defraud, conceals any testamentary instrument, whether the testator is
living or dead, commits a felony and is liable to imprisonment for ten
years.

4.3 Concealing deeds

Under section 278 of the Penal Code, any person who, with intent to
defraud, conceals the whole or part of any document which is evidence of
title to any land or estate in land commits a felony and is liable to
imprisonment for three years.

4.4 Killing animal with intent to steal

Section 279 of the Penal Code Act provides that any person, who kills
any animal capable of being stolen with intent to steal the skin or
carcass, or any part of the skin or carcass, commits an offence and is
liable to the same punishment as if he or she had stolen the animal.

4.5 Severing with intent to steal

Section 280 of the Penal Code Act provides that any person who makes
anything movable with intent to steal it commits an offence and is liable
to the same punishment as if he or she had stolen the thing after it had
become movable.

4.6 Fraudulent disposition of mortgaged goods

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Under section 281 (1) any person who, being the mortgagor of mortgaged
goods, removes or disposes of the goods without the consent of the
mortgagee, and with intent to defraud, commits a misdemeanour.

(2) In this section, “mortgaged goods” includes any goods and chattels of
any kind, and any animals, and any progency of any animals, and any
crops or produce of the soil, whether growing or severed, which are
subject for the time being, by virtue of the provisions of any written law
or of any written instrument, to a valid charge or lien by way of security
for any debt or obligation.

4.7 Fraudulent appropriation of power

Section 283 of the Penal Code Act provides that any person who
fraudulently abstracts or diverts to his or her own use or to the use of
any other person any mechanical, illuminating or electrical power
derived from any machine, apparatus or substance, the property of
another person, commits a felony and is liable to imprisonment for five
years.

4.8 Unlawful use of vehicles, animals

Under section 284 of the Penal Code Act, any person who, unlawfully
and without claim of right, but not so as to be guilty of stealing, takes or
converts to his or her own use or to the use of any other person, any
draught or riding animal or any vehicle or cycle, however propelled, or
any vessel, commits a misdemeanour and is liable to imprisonment for
six months or to a fine of one thousand shillings or to both such
imprisonment and such fine.

4.9 Conversion not amounting to theft

Under section 284, it is an offence for any person to, unlawfully and
without colour of right, but not so as to be guilty of stealing, take or
convert to his or her own use or to the use of any other person, any
draught or riding animal or any vehicle or cycle, however propelled, or
any vessel. This offence is designed to prevent persons temporarily use of
the property without their consent. In R v. Burns,20 a police officer took a
government vehicle which was stationed at the police station to Nairobi
without authority and spent a day in Nairobi with the vehicle. It was held
that this amounted to conversion not amounting to theft.

5. ROBBERY AND EXTORTION

5.1 Simple and Aggravated Robbery

20
(1958) EA 142

12
Robbery is defined under section 285 as when any person who steals
anything and at or immediately before or immediately after the time of
stealing it uses or threatens to use actual violence to any person or
property in order to obtain or retain the thing stolen or to prevent or
overcome resistance to its being stolen or retained.

In simple terms, robbery is constituted by the taking of goods from

another by violence or by putting him in fear. There are two important
ingredients of the offence of robbery.

(i) Use of violence immediately before or at the time of stealing

Where force is employed so as to steal, it will constitute the offence of
robbery only where it is employed at the very time of stealing or
immediately before that event, but not some time after the event. In
Njuguna v R,21 the accused having burgled a house and stolen therefrom
was discovered without a chase at a distance five hundred yards where
he then resisted the complainant with violence. It was held that the
offence was not robbery but burglary and theft because the element of
using violence immediately after the act was lacking.

The Penal Code does not state what degree of violence is required but it
must be substantial in view of the seriousness of the offence. The offence
is not committed if the complainant is not present so that there is no
violence to him/her or to his/her person.

Where several persons go to steal and one of them, unknown to the

others, uses violence, those others are guilty not of robbery but of
stealing, unless it can be shown that they were party to the use of
violence. reluctant

Mbazira Siragi & Baguma Henry v Uganda,22 the 1st and 2nd appellants
in this appeal, were convicted by the High Court (Mugamba J.) at
Mbarara, on two counts for simple robbery. They were both sentenced on
each count to 15 years imprisonment to run concurrently. Their appeals
to the Court of Appeal against conviction and sentence were dismissed,
hence this second appeal.

The prosecution case may be described in two segments. The first

comprises the evidence adduced to prove the robberies. The second
comprises evidence on discovery of stolen items and a gun and bullets
the robbers had during the robberies, which evidence was adduced to
prove that the appellants were among the robbers. We would summarise
the case as follows:

21
[1965] EA 583
22
Supreme Court CRIMINAL APPEAL NO. 7 OF 2004

13
In the night of 23rd September 2000, at about 10 p.m., three men armed
with a gun, attacked Erineo Turinawe, PW1, and his wife Winnie, PW6,
at their house in which they also operated a bar. They beat the victims,
tied them by the arms and forced them to lie down, while they stole
diverse goods, including 17 bottles of beer, a jerrycan of waragi, a radio
cassette, 30 music tapes, a handbag, a pair of trousers and a jacket,
which they packed in sacks. They demanded money as they continued to
beat their victims until PW6 surrendered an unascertained amount from
the day’s bar sales. The robbers then ordered PW1 to cause the
neighbour, Katarina Kikabahenda, PW2, to open her house cum shop.
When Katarina opened, the robbers attacked her also. One of them
repeatedly hit her with the butt of a gun demanding for money. while the
other two stole her shop items including 10kgs of sugar, a box of soap, 3
packets of Hedex tablets, Pepsi packages, and a 4” mattress. In addition,
she surrendered to the robbers shs.75,000/-. The victims reported the
robberies to the LC1 Chairman and to Ishunguriro Police Post. None of
them recognised their assailants. It is also noteworthy that even
subsequently the victims never identified any of the appellants as one of
the robbers.

On 25th September 2000, PW1 found one Kwizera Fred, PW3 playing one
of his stolen music tapes. Kwizera told him he had borrowed it from
Mbazira. Upon confirming from a mark on it that it was his, he sought
assistance from the Local Defence Unit (LDU) at Ishunguriro detach.
Four of the LDU personnel returned with him to Kwizera’s home. They
asked Kwizera for the tape and he said that Mbazira had taken it. They
went with Kwizera to Mbazira’s home. When asked for the tape Mbazira
denied any knowledge of it. They searched his house but did not find the
tape. Mbazira was arrested and taken to the LDU detach. Kwizera was
not arrested. Between 26th and 29th September 2000, Saad Gumisiriza,
PW4, of the said detach, with other LDU personnel continued the
investigations to trace the stolen goods. In the course of the
investigations, they discovered around the home of Mbazira, a radio
cassette, half a jerry can of waragi, a gun and bullets. They also
discovered a 4” foam mattress from the home of Baguma Henry alias
Karuna; and 1kg of sugar, a box of dry cells and a tin of sleeping baby
cream from the home of Mbabazi. They arrested Mbazira and Baguma
the two appellants and the said Mbabazi, who was later acquitted by the
trial court. They also arrested two other persons who apparently were
never charged. The gun and bullets were passed on to the police and
later produced in court but the rest of the discovered items were given to
the respective claimants and were never produced in evidence.

14
The appellants, together with Mbabazi, were indicted on two counts for
aggravated robbery. As the three eye witnesses did not identify the
accused as their assailants, the prosecution relied on the evidence that
the discovered items were some of the stolen goods and that they were
found in the possession of the accused soon after the robberies. The trial
court accepted the evidence, applied the doctrine of recent possession of
stolen goods, and held that the appellants committed the robberies.
Mbabazi was acquitted on the ground that the items taken from his
home were not particularly identified as items stolen during the
robberies. Further, the court was not satisfied that the robbers used or
threatened to use the gun produced in evidence. Accordingly, it convicted
the appellants of the lesser offence of simple robbery on both counts. The
Court of Appeal upheld the convictions on strength of the same doctrine
of recent possession of stolen goods.

The law on proof of a criminal offence by circumstantial evidence is as

was articulated by the Court of Appeal for Eastern Africa, in the leading
case of Simoni Musoke vs. R. (1958) EA 715, at p.718 that –
“… in a case depending exclusively upon circumstantial evidence, (the
judge) must find before deciding upon conviction that the inculpatory
facts were incompatible with the innocence of the accused, and incapable
of explanation upon any other reasonable hypothesis than that of guilt.”

In the same case, the court also cited with approval, the principle stated
in Teper vs. R. (2) (1952) A.C. 480 (PC) that –

“It is also necessary before drawing the inference of the accused’s guilt
from circumstantial evidence to be sure that there are no other co-
existing circumstances which would weaken or destroy the inference.”

( ii) The use of force must seek to put any person in fear
There must be more than a slight physical contact.
a) The force can be against any person need not be the person whose
property is stolen.
b) The force needs to be continuous.

Aggravated Robbery
This is covered under Section 286 ( 2). In the case of Wasaja v Uganda 23
the appellant was charged with robbery and with threatening to use a
deadly weapon, which offence carried a mandatory death sentence. He
was convicted in the High Court of robbery involving the use or
threatened use of violence other than by a deadly weapon and sentenced
to 15 years imprisonment. On appeal, the state argued that the appellant
should have been convicted of a capital offence. It was held that it had

23
[1975] EA 181

15
not been proved that the gun was a deadly weapon, that is, capable of
causing death and therefore the appellant was correctly convicted of a
lesser offence.

Under section 286 (2) of the Penal Code Act, where at the time of, or
immediately before, or immediately after the time of the robbery, an
offender uses or threatens to use or is in possession of a deadly weapon
or causes death or grievous harm to any person, such offender and any
other person jointly concerned in committing such robbery commit
aggravated robbery and, on conviction by the High Court, are liable to be
sentenced to death. A “deadly weapon” includes any instrument made or
adapted for shooting, stabbing or cutting and any instrument which,
when used for offensive purposes, is likely to cause death.

In Besigensi Edison v Uganda24 the Supreme Court concurred with the

Court of Appeal that "in a charge for robbery with aggravation, the
prosecution must prove three things, namely:
1. Theft of property in this case Shs: 195,000/= and the theft of a
sweater
2. A deadly weapon was used in the robbery
3. The accused participated in the robbery."

In Uganda v. Mujuni William,25 it was held that in a case of Robbery

contrary to section 285 and 286(2) of the Penal Code, the prosecution is
required to prove the following ingredients:-
1) That there was theft of some property.
2) That there was use or a threat to use a deadly weapon at the time
the theft was committed.
3) That the accused was a participant in the Robbery.

In Uganda v. Adupa Nelson & Ors,26 it was held that in an offence of

aggravated robbery contrary to sections 285 and 286 (2) of the Penal
Code Act the prosecution must prove beyond reasonable doubt each and
every one of the following ingredients:-
1. that there was theft of some property capable of being stolen.
2. that there was use or threat to use violence during the theft,
3. that there was use of or threat to use a deadly weapon immediately
before, during or immediately after the theft or that death was
caused or grievious harm to any person during the execution of the
theft, and
4. that the accused persons or any of them participated in the theft.

24
Supreme Court Criminal Appeal No. 09 of 2004.
25
HCT-05-CR-SC-0193 – 2003 (Mbarara).
26
Criminal High Court Session Case No. 36 of 2003.

16
 In Uganda v. Mukasa Ronald,27 it was held that In order for the
prosecution to succeed in a case of aggravated robbery it must prove the
following ingredients beyond reasonable doubt:
(a) theft of some property;
(b) use or threat to use a deadly weapon during immediately before or
immediately after the theft or robbery or causing death or grievous harm;
and
(c) participation of the accused.

In Uganda v. Kagyenda Moses,28 it was held that where the charge is

aggravated robbery the following ingredients ought to be proved:

- That there was theft.

- That there was the use or threatened violence;
- That there was use or the threat to use a deadly weapon; and
- That accused participated in the offence.

5.2 Attempted Robbery

Under section 287 of the Penal Code Act, any person who assaults any
other person with intent to steal anything and at, immediately before or
immediately after the assault, uses or threatens to use actual violence to
any person or property in order to obtain the thing intended to be stolen
or to prevent or overcome resistance to its being stolen commits a felony.

(2) Any person who commits a felony under this section is liable—
(a) on conviction by a magistrate’s court, to imprisonment for seven y
ears;
(b) on conviction by the High Court, to imprisonment for life.

6. Demanding property by written threats

Under section 290 of the Penal Code, any person who, with intent to
extort or gain anything from any person, and knowing the contents of the
writing, causes any person to receive any writing demanding anything
from any person without reasonable or probable cause, and containing
threats of any injury or detriment of any kind to be caused to any
person, either by the offender or any other person, if the demand is not
complied with, commits a felony and is liable to imprisonment for
fourteen years.

7. Procuring execution of deeds, etc. by threats

Under Section 292 of the Penal Code, Any person who, with intent to
defraud, and by means of any unlawful violence to, or restraint of, the
person of another, or by means of any threat of violence or restraint to be

27
High Court Criminal Case No. HCT-01-CR-SC-0015 of 2000.
28
HCT-05-CR-SC-0228 OF 2003 (High Court Mbarara)

17
used to the person of another, or by means of accusing or threatening to
accuse any person of committing any felony or misdemeanour, or by
offering or making any solicitation or threat to any person as an
inducement to commit or permit the commission of any offence, compels
or induces any person—
(a) to execute, make, accept, endorse, alter or destroy the whole or any
part of any valuable security; or
(b) to write any name or impress or affix any seal upon or to any paper or
parchment, in order that it may be afterwards made or converted into or
used or dealt with as a valuable security, commits a felony and is liable
to imprisonment for fourteen years.”

8. Demanding Property with Menaces

Under section 293 of the Penal Code, any person who, with intent to
steal any valuable thing, demands it from any person with menaces or
force, commits a felony and is liable to imprisonment for five years.

In Kagori v. R,29 the appellant was convicted of demanding money with

menaces with intent to steal, contrary to s. 302 Penal Code. The facts as
found were that the appellant went to a restaurant, introducing himself
as a representative of the Domestic and Hotel Workers Union. He alleged
the staff was underpaid and was allowed to inspect some records of the
restaurant. The next day he alleged to the complainant, a director of the
restaurant, that underpayments of the staff totaled Shs.1,700/- during
the previous year and if the restaurant settled for half that sum, he, the
appellant would destroy the letter and its carbon copy containing the
allegations of underpayments. The appellant was asked to return,
ostensibly to receive payment. By arrangement with the police the
complainant paid over some marked currency notes to the appellant and
their conversation was recorded. The magistrate found that the appellant
received the money as hush money to refrain from complaining that the
staffs were underpaid. It was held that the evidence to support a charge
such as that laid against the appellant must show that: (i) the accused
demanded a valuable thing (ii) he demanded it by menaces or force; and
(iii) he demanded it with intent to steal. It was further held that whether
there is a demand is a question of fact; the language used may even be in
form of a request. In this case, the court found that the ingredients of the
office of which that appellant convicted were proved.

(i) The Demand

A demand may take any form, an, no doubt, may be implicit as well as
explicit. A person may be guilty of demanding with menaces where for
example he apprehends another person in the act of stealing and
conveys to that person without any formal demand that if he pays him

29
[1967] EA 427.

18
money, he will hear no more of the matter. 30 But whether express of
implied, there must be a demand. Thus, if the above example the person
arresting receives and accepts an offer to buy his silence, the offence of
demanding with menaces will not have been committed.

Unlike some other property related offences, this offence is not limited to
things capable of being stolen. Thus, it covers ‘any valuable thing.’ and
this can include land. A demand may be complete though it has not been
communicate to the victim, because say, the victim is a deaf; and the
demand by letter when it is posited.31

The demand must also have been made with an intent to steal. The
intent may be ascertained by looking at what the position would have
been had the demand been successful. In the case of Okech & Anor. v
R,32 a shop cleaner was approached by the appellants who threatened to
have him run over by a motor car if he refused to steal articles from his
employer’s shop and sell them to the appellants at greatly reduced
prices. The cleaner reported the incident to his employer and two police
constables hid in the shop. The first appellant entered the shop and
indicated various items of clothing to the cleaner. The policemen
thereupon arrested him and subsequently arrested the second appellant.
The appellants were convicted of demanding property with menaces with
intent to steal. On appeal, it was held that in determining the question pf
intention to steal in a charge of demanding with menaces, the court may
look to see what the position would have been had the demand been
successful and that although the complainant was a cleaner and as such
not the owner or in special possession or control over the goods
demanded, it was sufficient if the goods were accessible or available to
him so as to enable him to pass on the goods so that they could be stolen
from the owner.

(ii) Menaces
The word ‘menace’ is an ordinary English word which in many cases will
convey its own meaning to an assessor without nee of elaboration. On
one view, it may connote only threats of violence to persons or property.
In Thorne v Motor Trade Associations,33 Lord Wright said that a menace
was a threat of ‘any action detrimental to or unpleasant to the person
addressed.34 From this definition, it might be thought that the distinction
between menaces and threats is wholly illusory, but it does perhaps
serve to be emphasized that the law will not treat as a menace words or
conduct which would not intimidate or influence anyone to respond to
30
Smith an Hogan p. 551
31
Treacy v DPP [1971] AC 537, [1971] AllER 110
32
[1968] EA 508.
33
[1937)AC 797
34
Ibid, p. 817.

19
the demand. In Harry35 the organizers of a student Rag had written to
shopkeepers offering them immunity from any ‘inconvenience’ resulting
from Rag activities, the trial judge ruled that there was sufficient
evidence of a menace.

However, this is not to say that there can be no menace unless P is

intimidated. D may be guilty of demanding with menaces where he
threatens to assault P unless P pays him money though P is in no way
frightened and squares up to D with a result that D runs away. Here, D
intends to intimidate P when he makes the demand and it can make no
difference that P is unmoved. D’s intention is crucial here. 36 In Kagori v.
R,37 it was contended that for the appellant that the complainant ‘was
not ruffled’ and therefore the offence was not committed. Court made
reference to the case of R v. Boyle (1914) 10 Cr. App. Rep. 100 where it
was held that if the threat is one of such character that it is not
calculated to deprive any person of reasonably sound and ordinary firm
mind of the free and voluntary action of his mind, it would not be a
menace within the meaning of the section. When a man with intent to
steal threatens either to do violence to the person of another or to
commit acts calculated to injure the property or character of another, it
is a menace within the meaning of the section. Accordingly, the test as to
whether there was a menace is objective.

Uganda v Swaibu Mikidadi & Anor. 38 it was held that demanding money
with menaces is a serious offence amounting to a felony and it is not
amenable to the provisions of section 156 of the MCA where the
proceedings may be stayed for purpose of promoting reconciliation. The
appropriate course would be to apply for withdrawal of the charges under
section 119 of the MCA.

9. BURGLARY, HOUSEBREAKING AND SIMILAR OFFENCES

9.1 Burglary and Housebreaking

Housebreaking is contained in section 294 and 295 of the Penal code.
Housebreaking is defined as breaking of any part of the building or
opening by unlocking, pulling, pushing, lifting or any other means any
door, window, shutter, cellar flap or other thing, intended to close or
cover an opening in a building, or an opening giving passage from one
part of a building to another.

Ingredients: Time
35
[1974] Crim LR 32
36
Smith and Hogan
37
[1967] EA 427.
38
[1995] II KALR 135

20
The two offences, burglary and housebreaking have the same ingredients
except one can be committed in the day time and the other committed at
night. Night means time between 6:30 PM and 6:30 AM.

In cases of breaking in order to enter, both the breaking and the entry
must be done at night. If the breaking is in the day and entry is at night
and vice versa, the offence is not burglary.

Breaking
This is an essential ingredient of both burglary and housebreaking. If a
man leaves the door of his dwelling house open and a thief enters
through the same open door, the offence is neither housebreaking nor
burglary because the element of breaking is lacking. Breaking may be
actual or constructive. There is actual breaking when a person breaks
any part whether external or internal of a building or opens by
unlocking, pulling, pushing or any other means. Whenever any door,
window shutter or any other thing intended to close or an opening in a
building or an opening giving passage from part of the building to
another.

There is breaking under the following circumstances.

 Opening a door with a key;
 Lifts a larch;
 Pushing or opening a closed window;
 If a person enters through an open front door;
 A person who is lawfully in the house such as a servant or a guest;
opens the closed door of the bedroom;
 No breaking if the door or window partly open, though not open;
enough to admit but one pushes it further;
 Constructive breaking occurs when entrance into a dwelling house
is obtained by means of threat or artifice;
 Entry through a chimney or a place permanently left for a
particular purpose but not intended to be used as ordinary means
of entrance;
 A pretence for instance sanitary inspector (R v Boyle (1954) 2 QB
292).

Entering
The accused must enter, or have entered, a building in order to be guilty
of burglary. The offence is not committed where there is no entry, even
where the breaking has been established. In Masenu Butiti v R,39 the
District Court of Mwanza convicted the appellant of housebreaking
contrary. The evidence established that the appellant broke a garage
door but ran away before any entry was made into the garage. On
39

21
revision, it was held that the essential ingredients of housebreaking are:-
(a) a breaking and entering, (b) into a building, (c) the commission of a
felony therein. That here there was no entry, so that the conviction was
wrong.

Whether there has been an entry is a question of fact. However, there

must be an "effective" entry. In R v Brown, 40 a witness, having heard the
sound of breaking glass, saw the accused partially inside a shop front
display. The top half of his body was inside the shop window as though
he were rummaging inside it. The witness assumed that his feet were on
the ground outside, although his view was obscured. The accused was
convicted of burglary. He appealed on the ground that he had not
"entered" the building, since his body was not entirely within it. The
Court of Appeal held, dismissing the appeal, that the word "enter" did not
require that the whole of the accused’s body be within a building. The
statement of Edmund-Davies LJ in R v Collins41 that entry must be
"substantial and effective" did not support the accused’s contention.
"Substantial" did not materially assist in the matter, but a jury should be
directed that, in order to convict, they must be satisfied that the entry
was "effective". There had clearly been an entry in the present case.

In R v Ryan,42 the victim, an elderly householder, found the accused

stuck in a downstairs window of the house at about 2.30am. The
accused's head and right arm were inside the window which had fallen
on his neck and trapped him. The rest of his body was outside the
window. He was convicted of burglary and appealed on the grounds that
there was no entry because he could not have stolen anything from
within the building on account of being stuck. The Court of Appeal
dismissed the appeal. That R v Brown made it clear that the accused
could enter even if only part of his body was within the premises. The
accused's inability to steal anything because he was trapped was totally
irrelevant.

Entering happens as soon as any part of the accused’s body or any part
of any instrument used by him is within the building. For example if in
the process of opening a window, the accused’s hand or fingers enters
the room, this is sufficient entry. The same applies to any instrument
used by him or her. For example if one uses a knife to cut open a window
or door and the knife is admitted into the room or if one uses a key to
open a door and part of the key projects into the building.

Intent

40
[1985] Crim. LR 212.
41
[1973] QB 100.
42
[1996] Crim LR 320.

22
The intent must be to commit a felony, not necessarily stealing. This may
be murder, arson or rape. It is sufficient if there is merely a breaking and
entering with intent to commit a felony. It is follows that if the accuse
sets up n honest right to enter, it will be for the prosecution to prove that
the belief was not held. 43 For example, if A honestly believes that Y’s
house is on fire, break opens the front door in order to put out the fire
and discovers that there is no fire, and is tempted to steal and does in
fact steal in the dwelling house, he is not guilty of burglary unless if after
committing the felony breaks through another part of the building.

10.Possession of Housebreaking Instruments

Under section 300 of the Penal Code, any person who is found armed
with any dangerous or offensive weapon or instrument, and being so
armed, with intent to break or enter any building, structure or curtilage
and to commit a felony in it or having in his or her possession without
lawful excuse, the proof of which lies on him or her, any housebreaking
instrument; commits an offence and is liable on conviction to
imprisonment for seven year. There are limited authorities on the
question what is an instrument of housebreaking, but such authority as
there is indicates that the instrument must be capable of being used for
the actual physical breaking of a house. For example, a pick-lock or a
skeleton key can be used to force the door or window or to turn a lock
and are clearly instruments of housebreaking. Other instruments whose
normal uses are innocent, such as screw drivers, drills and the like can
in proper cases be held to be instruments of housebreaking, because
they are capable in the hands of a burglar of the physical breaking of a
house. Thus, an instrument of housebreaking should be capable of being
used for the actual physical breaking of the house.

In the case of Kimbo Munyoki v R,44 the appellant was convicted of

possessing an instrument of housebreaking, namely, a “pencil” torch,
contrary to s.308 (1) (c) of the Penal Code of Kenya (now section 300 (1)
(b) of the Penal Code of Uganda). On appeal, it was held that an
instrument of housebreaking should be capable of being used for the
actual physical breaking of a house and as a “pencil” torch cannot break
a house, pick a lock, force a window or open a door it is not an
instrument of housebreaking.

11.Criminal Trespass

Criminal trespass is provided for under section 302 of the Penal Code
Act. It is committed when a person enters into or upon property in the
possession of another with intent to commit an offence or to intimidate,

43
Smith & Hogan
44
[1963] EA 630

23
insult or annoy any person; or having lawfully entered into or upon such
property remains there with intent thereby to intimidate, insult or annoy
any person or with intent to commit any offence.

Entering on another’s property is not trespass parse unless one does so

with intent to commit a crime or to intimidate, insult or annoy any
person.

In Crordino v. R (1945) 6 KLR 144, the accused entered into the house of
the complainant and removed furniture of the complainant. He was the
director of a road construction company. He entered in order to
dispossess the tenant. It was held that before a person could be
convicted of criminal trespass, it must be proved that he entered the
house or remained in the house with the intention of annoying, insulting,
intimidating or committing a crime. The accused was not found guilty.

12. Obtaining False Pretence

12.1 False Pretence

This is defined under section 304 as any representation made by words,
writing or conduct, of a matter of fact, either past or present, which
representation is false in fact, and which the person making it knows to
be false or does not believe to be true. Under section 305, any person
who by any false pretence, and with intent to defraud, obtains from any
other person anything capable of being stolen, or induces any other
person to deliver to any person anything capable of being stolen,
commits an offence and is liable to imprisonment for five years.

False pretence is the making of a representation that certain state of

affairs exists. The representation must be made either by conduct or by
spoken words. For example, if a person goes to a restaurant and orders
for food and he eats it while he has no money in his pocket. That
amounts to false pretence, the pretence being the ordering for food with
no money.

Ingredients
The subject matter
Only things capable of being stolen can be obtained by false pretences.
Things such as land or intangible things such as a job cannot be
obtained by false pretences.
Obtaining
For false pretence to amount to a crime, the accused must have obtained
some property by pretence and this must be done with intent to defraud.
To defraud means to deceive a person to act to his injury- to deceive so
that one loses property. E.g. R v. Rootes Kenya Ltd Dobbs (1958) EA 13,

24
it was held that before a person can be convicted of obtaining goods by
false pretences, it is not necessary to prove that the false pretence in fact
operated on the mind of the victim provided that the person handed over
the property he had the authority of the person to whom the false
pretence was made. It must, however, be proved that the property was
obtained by false pretences.

Blasius v. R (1973) EA 510 where the accused obtained some money from
the complainant pretending to have some fish to sell. He went and he did
not come back until he was arrested by the police.

Other examples include where a person obtains a loan of money by false

pretence even though he intends to repay it because ownership in the
particular money lent has passed to him. Or obtaining a railway receipt
by false pretence even though at the end of the journey the receipt will be
returned to the owner.

The offence is still committed where the accused obtains something not
for his benefit, but for the benefit of some other person. In Mukindia v
R,45 the appellant was convicted on five counts of obtaining money by
false pretence. The gist of the offences charged was that the appellant
who managed his father’s timber business obtained from the
complainant cheques for varying amounts by representing claims
supported by invoices which purported to show that the appellant had
delivered quantities of timber to two agents of the complainant, whereas
in fact the quantities delivered were considerably less than those shown
in the invoices. The cheques were paid into the appellant’s father’s bank
account and in the course of the trial, the charges were amended to
make it clear that the appellant had received the sums represented by
the cheques for his father. On appeal, it was argued for the appellant
that section 313 of the Penal Code (now section………) does not make it
an offence for a person to obtain by false pretence anything on behalf of
another. It was held that the word “obtains” in section 331 (now ……) of
the Penal Code includes obtaining for another, provided that that is what
is alleged in the charge and that the charges as amended made it clear
that the appellant was charged with obtaining various amounts ‘for’ his
father, and such an offence was contemplated by section 331 of the
Penal Code.

Inducing delivery
There is a distinction between obtaining and inducing delivery. Obtaining
means obtaining for oneself and inducing delivery covers the situation
where for example A induces B to deliver to A himself or to C. inducing
delivery refers to inducing delivery of ownership if possession is given to

45
[1966] EA 425.

25
him and ownership is meant for some other person. It is stealing if the
accused fraudulently converts the property to his own use.

The pretence
A false pretence is a representation made by words, writing, or conduct
of a matter of fact, either past or present which representation is false in
fact, and which the person making it knows to be false or does not
believe it to be true. For example where a man draws a cheque on a bank
he impliedly represents that the existing state of facts is such that in the
ordinary course of the cheque will be met. Archbold has observed that a
man who makes and gives a cheque for the amount of goods purchased
in a ready money transaction makes a false representation that the
cheque is good and valid and order for the amount inserted in it and if
such a person has only a colourable account at the bank on which the
cheque is drawn without available assets to meet it, and has no authority
to overdraw and knows that the cheque will be dishonoured on
presentation and intends to defraud, he may be convicted of obtaining
such goods by false pretence.
R v. Jennison (1862) Le & Ca 157 the accused induced a woman by not
only promising to marry her but also represented that he was a single
man when in fact he was married. It was held that he was rightly
convicted of obtaining the woman’s money by false pretences. i.e. the
pretence alleged in the charge must be proved to be false.

Where it is proved that the property was obtained by means of the false
pretence, it is not necessary to prove that the false pretence was made to
or operated on the mind of the person who physically hands over the
property if that person was merely a mechanical instrument or had the
authority of the person to whom the false pretence was made to hand
over the property.46 In these circumstances, the accused may be charged
with obtaining the property from either of those persons. 47 This is in line
with Halsbury’s Laws of England, 48 where it is stayed that it is not
necessary to specify on the indictment to whom the pretence was made,
but if the pretence was made to some person other than the one from
whom the property was obtained, it must be proved that the pretence
operated on the mind of the person from whom the property was
obtained.

Past or present matter

The representation must refer to a matter of fact either past or present. If
it relates only to a future matter, no offence is committed. In R v. Dent
(1955) 39 Cr. App R 131, the accused carried on the business of a pest
destroyer, entered into contracts with various farmers whereby he agreed
46
R v Rootes (Kenya) Limited & B.S. Dobbs [1958] EA 13.
47
Ibid.
48
Halsbury’s Laws of England, Vol 10, (3rd Edn.), p. 827.

26
to exterminate pests on their farms. Under the contracts, he received half
the annual charge in advance. He did no work under the contracts. The
court of criminal appeal held that the accused was not guilty of obtaining
money by false pretences as there was no false representation of existing
fact but only of future intentions.

R v Dent has been followed in East Africa in the case of Nyaga v R. 49 in

this case, the appellant was convicted of obtaining money by false
pretences by promising to deliver goods to the complainant. It was held
that a false pretence must be a pretence about an existing fact and this
is not satisfied by a promise for the future.

Falsity of the Pretence

The pretence must not only be false but it must be false to the knowledge
of the maker or at least he must not believe it to be true. If he honestly
believes in the truth of the statement which turns out to be false, there is
no offence of false pretence. For example if a butcher represents the meat
he sells as the best in the market and it turns not to be so, this is not a
false pretence.

Intent
In order for the charge of false pretence to stand, it must be proved that
the accused not only obtained something by false pretence but also that
he intended to defraud. For example if a person makes a false
representation in order to regain his property from a person who
wrongfully acquired it. In a Nigerian case of R v. Abnah (1931) ALL NLR
635, the accused a legal practioner had represented the complainant in a
case which was settled and as a result of which a sum of money was paid
into court. The court then made an order for the payment of money to
the complainant. By falsely representing that he had the complainant’s
authority to withdraw the money, the accused induced the cashier to pay
the money to him. It was held that the complainant was defrauded in
being put at a disadvantage in the over the accused’s fees and being
made to wait for his money until the matter was settled to the
satisfaction of the accused.

13. Cheating
Under section 307 of the penal code, a person commits cheating when by
means of any fraudulent trick or device obtains from any other person
anything capable of being stolen, or induces any other person to deliver
to any person anything capable of being stolen or to pay or deliver to any
person any money or goods or any greater sum of money or greater
quantity of goods than he or she would have paid or delivered but for

49
[1975] EA 118.

27
such trick. The offence is a misdemeanour punishable by imprisonment
for three years.

In effect, cheating is obtaining property of another by a deceitful of illegal

practice. Ali v. R the appellant represented to a simple village woman
that he was a magician who could increase money by his art. With the
village woman’s consent, he put her money in a hole in the ground and
covered it with a plate he then asked the woman to fetch ashes to mix
with his medicines, and while she was away, he removed the money.
Upon her return, the appellant mixed the ashes and medicines in the
plate and told the woman that if she came back next morning, she would
find her money much increased. It was held that the appellant was
rightly convicted of cheating.

NB. It has to be established that a person has by any fraudulent trick or

device obtained anything capable of being stolen from another person.
Examples of cheating include presenting of false invoices to the
customers and obtain release of the goods on payment of a lower amount
of duty that was properly charged; or fraudulent use of weighing
machines.

In Uganda v Ndyanabo,50 the accused was convicted on his own plea of

cheating by selling salt at more than the controlled price. No fraudulent
trick or device was alleged and the accused said that the mistake was his
son’s. It was held that the offence of cheating under section 307 of the
Penal Code was not disclosed because the particulars as stated did not
in any way suggest that the accused employed any fraudulent trick or
device

The Distinction between Obtaining Money by False Pretence and

Cheating
The distinction between the offence of obtaining money by false pretence
and cheating is very thin. However, it is very important since charging a
person with a wrong offence may lead to an acquittal and there is no
absolute guarantee that the powers of court to substitute a charge in
favour of one proved by evidence 51 will be exercised in favour of the
prosecution. The distinction between these two offences has been
considered in the case of Blasius v R. 52 In this case, the appellant was
convicted of cheating. The prosecution alleged that he had falsely
represented to two persons that he had fish to sell. On receiving Shs.
34/- he entered a building and disappeared. The charge as laid did not
specify the trick or device used by the appellant.

50
[1974] EA 552
51
52
[1973] EA 510

28
On appeal the court discussed two cases to illustrate the difference. The
first one is Mohamed Selemani Mzaramo v R 53 where the accused sold a
tin of sand to the complainant with the pretence that it was sugar. A
layer of sugar had been spread on the top of the tin. It was held that the
facts disclosed the offence of cheating. The second case is John Joseph v
R54 where the appellant had constructed for himself a sealed tin
containing turbid water. He then got a witness N at a bus stand and
explained that he was in difficulty. He asked this witness to advance Shs.
30/- in return for which the appellant will deposit his tin containing
ground nut oil valued at 60/- It appeared as if the tin had a few drops of
ground nut oil on the top. N agreed to help the appellant as requested.
The appellant was shortly arrested by a policeman who had been
watching the proceedings. The tin was found to contain only water. It
was noted that ‘…..cheating is perpetuated by a trick or device while
obtaining by false pretences depends on a false statement of an existing
fact. But considering that such false statement may be made by act or
conduct, the distinction may be very fine if not non-existent.’ It was
further stated that:
In the instant case, the appellant said his tine contained groundnut
oil. It appeared from the fact that some groundnut oil was on the top
of the tin, that what was stated to be the contents was true. While
the manufacture of a tin with water in it might be seen as a trick or
device, nevertheless it can hardly be doubted that it was the
appellant’s statement that was the main deception, no doubt aided
to some extent by the state of the tin. Had the appellant merely
produced the tin, that would not have been sufficient to deceive N. I
am inclined to the view that where money is obtained on the
strength of the statement as to the contents or quality of some
object, it is the false statement concerning the contents of the object
rather than the presence of the thing that is material. For this
reason, I would prefer to base the appellant’s conviction on section
302 of the Penal Code that of obtaining money by false pretence
rather than cheating. But in saying so, I accept that it might be that
either section can be employed according to the circumstances of a
particular case. Even in the present case, the distinction is narrow
indeed.

One has to compare the decisions in these two cases to conclude that
such a distinction is non-existent or if there is, is of no consequence. In
both cases, a trick or device was used (in one case a tin of sand, in the
other a tin of turbid water), in both cases a layer of the actual substance
(sugar in one case and oil in the other) was spread over the top to give
the impression that the tin contained sugar or oil and finally in both

53
(1969), H.C.D. 127
54
(1969), H.C.D 171

29
cases the appellants falsely represented to the complainants that the tins
contained sugar or oil. These false representations deceived the
complainants in both cases. Yet in one case the transaction was said to
cheating and in another to obtaining money by false pretences.
In the instant (Blasius)case, the judge observed that the problem
underlying the distinction between these two offences is that in every
cheating situation, there is involved a false pretence for in order to
succeed, the trick or device must be accompanied by false description of
it, which therefore is a false statement, leading to the offence of obtaining
whatever is obtained by false pretences. He therefore opined that both
the above cases could quite properly have been charged as obtaining by
false pretences. The result of this analysis is that all cheating situations
contain elements of obtaining by false pretences, although certainly the
converse is not true. The court therefore held that the present case was
one of obtaining money by false pretences and not cheating. The
appellant, if he did, obtained money by falsely pretending that he had
fish to sell. In saying so, he did not use any trick or device. He simply
made a statement of an existing fact. The charge for cheating was
therefore misconceived.

From the above case, two conclusions can be made and summarized as
below:
a) Where a person obtains anything by a false representation
with or without a trick or device, it is obtaining by false
pretences.
b) Where a person obtains anything solely by trick or device
(although it is rare), it is cheating.

14. Obtaining credit by false pretence

It is an offence for any person incurring any debt or liability to obtain
credit by false pretence. The prosecution must prove
1) the incurring of a debt or liability
2) the obtaining of credit
3) the false pretence
4) Intent to defraud.

In Rajani v R,55 the appellant who resided in Mwanza ordered some

bicycle parts from a company at Kampala. Before the goods were
dispatched, the appellant agreed to pay the company by two promissory
notes payable after sixty and ninety days respectively. The goods were
dispatched to the appellant with two promissory notes for his signature,
which he did not return. The appellant later gave another set of
promissory notes to the company which were dishonoured. The appellant
was charged and convicted of obtaining credit by fraud. In his judgment,

55
[1958] EA 646.

30
the magistrate found that at the time of ordering for the goods, the
appellant had no intention of subsequently paying for them. On appeal,
it was argued that mere intention not to pay does not amount to
obtaining credit by fraud. It was held that when the appellant accepted
the credit terms offered by the Kampala company for the goods he had
ordered, having no intention of paying for them and concealing that
intention, he had obtained credit by fraud.

15. Receiving or retaining stolen property

Under section 314 of the Penal Code Act, it is provided any person who
receives or retains any chattel, money, valuable security or other
property, knowing or having reason to believe the same to have been
feloniously stolen, taken, extorted, obtained or disposed of, commits a
felony and is liable to imprisonment for fourteen years.

Ingredients

Possession
A person commits an offence of receiving stolen property if to his or her
knowledge that the property had been stolen and he receives it with a
guilty knowledge. In order to prove receiving, it is sufficient to show that
the accused person has either alone or jointly with some other person
had the thing in his possession or has aided in concealing it of disposing
of it. Even mere assisting in disposing of the thing without having control
over it is receiving. i.e. the prosecution must prove that the accused had
knowledge that the property was stolen and he receives it.

Section 2 (v) provides a very wide definition of the word possession. It

includes not only having in one’s own personal possession, but also
having anything in the actual possession or custody of any other person,
or having anything in any place (whether belonging to or occupied by
oneself or not) for the use or benefit of oneself or of any other person.
Further, under this section, if there are two or more persons and any one
or more of them with the knowledge and consent of the rest has or have
anything in his or her or their custody or possession, it is deemed and
taken to be in the custody and possession of each and all of them.
However, it was held in the case of Kara v R 56 that this broad definition
does not apply to the offence of stolen property. In this case, the
appellant was charged with receiving a tape recorder knowing it to have
been stolen. The appellant when shown the parcel containing the tape
recorder admitted that someone had left it there. He did not admit
knowing that it contained a tape recorder.

56
[1971] EA 191.

31
Possession, in the context of this offence seems to be physical
possession. In the case of Kateba v R, 57 the appellant offered to sell a
radio in circumstances which apparently made one of the persons
present, Hamisi, suspicious. Hamisi offered to buy the radio and took it
away. Subsequently, Hamisi sought out the appellant and took him to
his house where he collected the radio and then took it and the appellant
to the police station, where the appellant was arrested and charged with
possession of property suspected of having been stolen. He was convicted
and appealed. It was held that the appellant having parted with
possession of the radio when it was taken from him by Hamisi was not
‘in possession’ of it when arrested.

Mere manual possession of a stolen article without having control over it

does not amount to possession of it.58 Possession may be sole or joint
possession. In Said Kigozi v R,59 the appellant was convicted by a
magistrate of receiving a bicycle knowing it to have been stolen. Evidence
was led to show that the bicycle had been taken to the appellant for
repairs and had been found in the appellant’s house in a dismantled
condition. Further evidence showed that the appellant had removed the
small part which bears the number. The magistrate drew an inference of
a guilty knowledge from the manner in which the appellant dealt with the
bicycle. It was argued on appeal that the appellant did not have
possession of the bicycle of the nature that must be proved to establish a
charge of receiving. It was held that although mere manual possession of
a stolen article without having control of it does not amount to
possession in law, in this case evidence showed that the appellant had at
least joint possession and had at least joint control over the article.

However, circumstantial evidence that property must have been stolen

can be sufficient. For example, if a person takes a brand new car to the
garage, he repaints it from blue to white or someone hides it. In Idi s/o
Waziri v. R,60 the accused was found in his possession of some property
but there was no evidence to prove conclusively that the property had
been stolen. However, the circumstances under which he received the
goods showed that the goods were stolen. In this case, he had a bag of
coffee in a maize field. He attempted to sell it below the true value of the
coffee and he tried to sell it secretly. When questioned about the coffee,
he denied it. The court observed that on a charge of theft or receiving
stolen, there need not be direct evidence that the goods were stolen
goods. That an accused having been found to have been in possession of
the goods, the circumstances of that possession must be examined for
the purpose of ascertaining if it can be inferred, on the basis of the
57
[1967] EA 215.
58
See Hobson v Impett, 41 Cr. App. R. 138.
59
[1958] EA 1.
60
[1961] EA 146.

32
normal burden of proof, that the accused received the goods knowing
them to have been stolen. This necessarily involves proof of
circumstances showing that the accused received the goods knowing
they were in fact stolen and the circumstances of possession may be
sufficient to prove that the property was stolen and that the possessor
knew that the property was stolen and knew it when he received it.

In Mwangi Njoroge v. R,61 The appellant was convicted of receiving stolen

property contrary to s.322 (1) of the Penal Code. The evidence showed
that when the appellant’s house was searched a large number of M. & B.
tablets were found in tins placed under the legs of his bed. When
charged, the appellant made a cautioned statement to the effect that the
tablets were not stolen but that they had belonged to someone else and
that he had bought them. In convicting the appellant the magistrate
relied on Ids s/o Waziri v.R., (above) and held that having regard to the
circumstances of the appellant’s purchase and possession of the tablets,
they had been stolen and that the appellant knew that they had been
stolen. On appeal, it was held that where there is no direct proof of theft
or of receiving goods knowing them to have been stolen, the ordinary rule
of circumstantial evidence must be applied, namely, that the
circumstances must be such as to convince any reasonable person that
no other conclusion was reasonably possible since it was possible that
the tablets had been concealed because the appellant had committed the
minor offence of contravening s.26 of the Pharmacy and Poisons
Ordinance, the magistrate was wrong in convicting the appellant of
receiving stolen property.

Receiving dishonestly
The receiving must be dishonest, i.e. the receiver must be knowing that
the goods to have been stolen and must intend to appropriate them to
his own use or to the use of some person other than the true owner. For
example, receiving stolen goods with a view of handing them over to the
police or to the true owner is not an offence R v. Mattews (1950) 1 All E.R
137.

Property received
It must be proved that the property received had been previously stolen
or obtained by means of an act constituting a felony or misdemeanor. It
is not sufficient to show that the goods had previously been stolen. They
must continue to be stolen goods at the time when the accused person
received them. In David Kasule v Uganda,62 the appellant was convicted
of receiving stolen property. There was evidence that about sixteen car

61
[1963] EA 624.
62
[1966] EA 338.

33
armatures were missing from the store of a car company and that the
appellant attempted to sell an armature to a police officer when the
police officer visited his shop in the course of investigations. The
appellant tried to run away when the police officer disclosed his identity
and volunteered the information that the armature was a gift from one S.
which was denied by S. The magistrate stated in his judgment that it had
not been proved that the armature was one of the armatures stolen from
the store nor could the company’s manager positively identify it. One of
the grounds of appeal was that the charge receiving was not
substantiated for want of proof that the armature was unlawfully
obtained or disposed of. It was held that a person charged of receiving
stolen property who does not plead guilty cannot be convicted unless the
prosecution established that the property, the subject matter of the
charge, had in fact been stolen or feloniously or unlawfully taken,
extorted, obtained, converted or disposed of.

Goods will cease to be stolen goods as soon as they are recaptured by the
true owner or by the police on his behalf. A person who receives them
thereafter is not guilty of receiving stolen goods.
In Ratilal & Anor. v. Republic, 63 a Cortina car was stolen and was seen at
one time or another in the possession of two accused. The first accused
had the car re-sprayed. On the same day the second accused made plans
to buy another blue Cortina and from this car the registration number,
the filler cap, the Road Funds Licence, the alloy tag and other descriptive
numbers were ultimately transferred to the stolen Ford in an attempt to
conceal its identity. The accused were charged jointly with stealing the
vehicle or in the alternative of handling stolen goods contrary to s.322 (2)
of the Penal Code (of Kenya).

The trial magistrate acquitted both accused of stealing but convicted

both of handling the stolen vehicle. On appeal to the high court, the
convictions were upheld. On further appeal, it was held that on a charge
of handling stolen goods the prosecution must prove that the handling
was otherwise than in the course of stealing; that the accused
received the goods knowing or having to believe that the goods were
stolen, or that the accused dishonestly undertook or assisted in the
retention, removal or disposal or realisation of the goods by or for the
benefit of another person.

R v. Vilensby (1892)2 QB 597

R v. King (1938)2 ALL ER 662

Guilty Knowledge

63
[1971] EA 575.

34
It must be shown that the accused at the time of receiving the goods
knew they were stolen or obtained by means constituting a felony or
misdemeanor. Guilty knowledge may be proved by direct or
circumstantial evidence or confession.

What is required of the accused is to give a reasonable explanation of

how he came into contact with the property in question. He does not
need to prove affirmatively that the property in question actually belongs
to him or her. In the case of Tenywa v Uganda 64 the appellant was
stopped and questioned by a detective sergeant as to his possession of a
bicycle. The appellant stated that he had bought the bicycle from an
Asian in Kamuli but he could not produce an invoice covering the
purchase and when taken to the said Asian, the Asian denied having
soled the appellant the bicycle. The appellant was taken to Central Police
Station and the police, after investigations, received a report that the
number of the bicycle frame had been forged. The appellant was duly
prosecuted and convicted of possession of property suspected of having
been stolen. In his defence, the appellant maintained that he had had
the bicycle for the past two years and that the receipt which had been
given to him when he bought the bicycle was lost.

On appeal, it was held that the trial magistrate was wrong in law in
holding that the onus of establishing that the bicycle was the appellant’s
was on the appellant. That what the law requires on a charge of
possession of property suspected of having been stolen is that the
appellant should give an account as to how he had come by the bicycle
to the satisfaction of the trial magistrate. Generally therefore in absence
of proof by the prosecution that the article is the property of someone
else, a reasonable explanation of how the accused person had come by
the property would be sufficient ground upon which to discharge him.
On the evidence as a whole, the appellant had given a reasonable
explanation as to how he had come to be in possession of the bicycle.

In Onyango v Uganda,65 the appellant was convicted of being found in

possession of a radio which was reasonably suspected of having been
stolen. The case against the appellant was that he offered the radio for
sale to one Ibwatt for Shs. 450/=. The appellant told Ibwatt that he had
bought the radio and had a receipt for it and the appellant’s companion
confirmed that the radio belonged to the appellant. Ibwatt then left the
appellant and reported the offer of the sale to Det. Cost. Obuku on the
ground that he had come to a conclusion that the radio was stolen.
Obuku went back with Ibwatt to the appellant and asked the appellant to
produce the receipt given to him when he bought the radio. The

64
[1967] EA 102.
65
[1967] EA 386.

35
appellant stated that the receipt was at his home and Obuku went with
the appellant to his house to search for the receipt. The appellant was
unable to find the receipt and he was arrested on the ground that he had
stolen the radio. He was convicted and on appeal, it was held that mere
failure to produce a receipt could not in itself afford a reasonable ground
for suspicion that the radio was stolen. That the explanation offered by
the appellant that he had bought the radio from Kisumu was sufficiently
reasonable to have warranted its acceptance as satisfactory.

The Doctrine of Recent Possession

This is a way of referring to the inference of fact which in the absence of
satisfactory explanation by the accused may be shown as a matter of
common sense from the fact that he was in possession of the goods
recently stolen. The burden of proof shifts to the accused.

The general principles in relation to the doctrine are: the court may
presume the person in possession of the goods soon after their theft is
either a thief or has received the goods knowing that they are stolen
unless he can account for his possession.
NB where it is difficult for the prosecution to prove theft, the charge
should be framed in the alternative, first of theft then of receiving
because a person cannot be convicted of both theft and receiving stolen
property. He may be convicted of either of them.

In Mbazira Siragi & Baguma Henry,66 the Supreme Court stated that:
‘The doctrine of recent possession of stolen goods is an application of the
ordinary rule relating to circumstantial evidence. The fact that a person
is in possession of goods soon after they are stolen raises a presumption
of fact that that person was the thief or that that person received the
goods knowing them to be stolen, unless there is a credible explanation
of innocent possession. It follows that the doctrine is applicable only
where the inculpatory facts, namely the possession of the stolen goods, is
incompatible with innocence and incapable of explanation upon any
other reasonable hypothesis than that of guilt. The court must also be
sure that there are no other co-existing circumstances that weaken or
destroy the inference of guilt.

The starting point for the application of the doctrine of recent possession,
therefore, is proof of two basic facts beyond reasonable doubt; namely,
that the goods in question were found in possession of the accused and
that they had been recently stolen.

66
Supreme Court Criminal Appeal No.7 of 2004.

36
Accordingly, in re-evaluating the evidence adduced against each
appellant we have to consider it from two perspectives; namely whether
the evidence proves that –
the found items (or any of them) were stolen during the robberies in
question;
any of the appellants was in possession of any of the found items.

In Walugembe Henry v Uganda,67 it was stated that under the doctrine of

recent possession, if a person is found in possession of property that was
recently stolen, a presumption of fact arises that such person is either
the thief or a receiver with knowledge that the property was stolen. The
presumption may be rebutted by credible explanation of innocent
possession of the property.

Court made reference to the case of Kantilal Jivraj and Another vs. R, 68
where the Court of Appeal for Eastern Africa stated that "It is of course
well established, ... that a court may presume that a man in possession
of stolen goods soon after the theft is either the thief, or has received the
goods knowing them to be stolen, unless he can account for his
possession. ... This is an inference of fact which 'may be drawn as a
matter of common sense from other facts...' It is merely an application of
the ordinary rule relating to circumstantial evidence that the inculpatory
facts against an accused must be incompatible with innocence and
incapable of explanation upon any other reasonable hypothesis than that
of guilt. According to the particular circumstances, it is open to a
court ... to hold that unexplained possession of recently stolen articles is
incompatible with innocence. But guilt in this context may be guilt either
of stealing or of receiving the articles in question." (Emphasis is added).

In Andrea Obonyo and Another vs. R,69 the same court fully considered
and reviewed the doctrine of recent possession, and at p. 549 had this to
say on the question of determining the offence to be inferred in different
scenarios -
"When a person is charged with theft and, in the alternative with
receiving, and the only evidence connecting him ... is the recent
possession of the stolen property, then if the only reasonable inference is
that he must have either stolen the property or received it knowing it to
be stolen, he should be convicted either of theft or of receiving according
to which is more probable or likely in the circumstances. He is not
entitled to be acquitted altogether (merely due to the doubt on which of
the two)... because the decision is not between guilt or innocence but
between whether he is guilty of theft or receiving...But where it is sought
to draw an inference that a person has committed another offence from
67
Supreme Court Criminal Appeal No. 39 of 2003.
68
(1962) EA 6, at p. 7.
69
(1962) EA 542.

37
the fact that he has stolen certain articles, the theft must be proved
beyond reasonable doubt. If, in such a case, a finding that he stole the
articles depends on the presumption arising from his recent possession
of the stolen articles such a finding would not be justified unless the
possibility that he received the articles has been excluded. The inference
that he stole the articles must be irresistible."

Bukenya Patrick & Munsuru Rajabu v Uganda,70 the supreme court

reiterated what it stated in Magidu Mudasi v Uganda Cr. Appeal No. 3 of
1998 (SC) that:-
"It is now well established that a court may presume that a man in
possession of stolen goods soon after the theft is either the thief or has
received the goods knowing them to have been stolen unless he can
account for his possession. This is an inference of fact which may be
drawn as a matter of common sense from other facts including the
particulars of the fact that the accused has in his possession property
which it is proved had been unlawfully obtained shortly before he was
found in possession. It is merely an application of the ordinary rule
relating to circumstantial evidence that the inculpatory facts against the
accused person must be incompatible with innocence and incapable of
explanation upon any other reasonable hypothesis than that of guilt.

The Supreme Court also repeated the same principle in the case of
Bogere Moses & Anor v Uganda Cr. Appeal No. 1 of 1997 (SC) where it
stated that:-
"It ought to be realised that where evidence of recent possession of stolen
property is proved beyond reasonable doubt, it raises a very strong
presumption of participation in the stealing so that if there is no innocent
explanation of possession, the evidence is even stronger and more
dependable than the eye witnesses evidence of identification in a
nocturnal event. This is especially so because invariably the former is
independently verifiable while the later solely depends on the credibility of
the eye witness."

Conversion of stolen property

A steals a sum of money and offers it to B who knowingly receives it. B is

guilty of receiving stolen property. In D’Andrea v. Woods (1953) 1 WLR
1307, two girls stole savings stamps and converted them into cash, part
of which they handed to the accused who admitted that when he received
the money, he knew it was part of the proceeds of stolen stamps. He was
convicted of receiving money knowing it to be stolen.

16. Smuggling and Related Offences

70
Supreme Court Criminal Appeal No. 15 of 2001

38
16. 1 Exportation without a licence
Section 318 of the Penal Code requires the exportation or importation of
goods from or into Uganda to be licenced by the Minister responsible.

16. 2 Smuggling
Under section 319 of the Penal Code, any person who exports or imports
any goods from or into Uganda in contravention of section 318; or in
such manner that the goods are concealed in any way; packed in any
package, whether or not with other goods, in a manner calculated to
deceive any authorised officer; contained in any package of which the
entry or application for carriage out of or within Uganda does not
correspond with such goods; or in any manner by which he or she
evades the control of customs over such exportation or importation,
commits the offence of smuggling.

In Nassanga Eliva V Uganda,71 the learned trial Magistrate convicted the

appellant of the offences of smuggling contrary to section 319 (1) (c) of
the Penal Code Act (Cap. 120) and being in possession of goods
reasonably suspected to have been smuggled contrary to section 320 of
the Penal Code Act (Cap. 120). The learned trial Magistrate sentenced the
appellant to a term of 3 years imprisonment on both counts and
payment of a fine of shillings 5,000,000/= on each count. He also made
an order that in default of payment of the fine the appellant would serve
a term of 1 year’s imprisonment on each count. In addition, the said
Magistrate directed the police at Luwero to destroy the cigarettes that
were the subject of the above charges.

The above decision, sentences and order aggrieved the appellant.

Therefore, she appealed against them. The issue on appeal was whether
the learned trial Magistrate erred in law and in fact in convicting the
appellant of the above charges. With regard to the first issue (i.e. whether
the learned trial Magistrate erred in law and in fact in convicting the
appellant of the above charges) Court will discuss the two charges
separately. However, before doing so it is worth noting that section 318 of
the Penal Code Act (Cap. 120) gives a good background to the charges in
question. Firstly, among other things, that section shows that except in a
few circumstances (e.g. where goods are for personal use or for use as
gifts in reasonable quantity) the importation of goods into Uganda
without a licence granted by the Minister responsible is prohibited.
Secondly, section 318 leaves no doubt that the “customs posts in
existence immediately before the 11th January 1980 shall …, be deemed
to be the prescribed places of … entry…” into Uganda.

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HIGH COURT CRIMINAL APPEAL NO. 59 OF 2007

39
Court held that Bearing in mind section 318 of the Penal Code Act (Cap.
120), the State would only succeed under the charge in count 1 if it led
evidence to prove the following things beyond reasonable doubt:

(a) that the cigarettes in question were imported into Uganda without a
licence granted by the Minister responsible; and

(b) that the appellant imported those cigarettes into Uganda in a manner
by which she evaded the customs control over such importation.

The vital question to answer here is whether the lower court’s record
bears evidence to prove beyond reasonable doubt the above two
requirements of the law?

The answer to the above question is in the negative. Firstly, there is no

evidence on the record of the lower court to prove that the cigarettes in
question were imported without a licence granted by the Minister
responsible. Secondly, none of the State’s witnesses testified that the
appellant had a hand (direct or indirect) in the importation of the above
cigarettes. Thirdly, the State did not lead any evidence to prove that the
importation of the said cigarettes into Uganda was done by way of
evading the control of customs over such importation. For example, there
was no evidence on record to show that the importation of the above
cigarettes was effected through dodging the known customs posts or by
way of going through such posts with the cigarettes concealed so that no
import tax was paid on them. In addition, although part of Okello John’s
testimony was to the effect that an informer from Internal Security
Organisation (ISO) told him that the cigarettes in question were
smuggled into Uganda that testimony is simply useless. It is useless
because it is hearsay. The State did not call the informer as a witness to
substantiate what Okello John said he heard from him or her.

16.3 Possession of Smuggled Goods

Section 320 of the Penal Code provides that any person who is found in
possession of property or goods reasonably suspected to have been
smuggled into Uganda … in contravention of sections 318 and 319
commits an offence and is liable to the same penalties as are prescribed
in section 319.”

In Nassanga Eliva V Uganda,72 it was observed that Bearing in mind

section 318 of the Penal Code Act (Cap. 120) the State would only
succeed under the charge in count 2 if it led evidence to prove the
following things beyond reasonable doubt:

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HIGH COURT CRIMINAL APPEAL NO. 59 OF 2007

40
(a) that the cigarettes in question were imported without a licence
granted by the Minister responsible;

(b) that the appellant was, at the material time, found in possession of
the cigarettes, which were property or goods reasonably suspected to
have been smuggled into Uganda in contravention of sections 318 and
319 of the Penal Code Act (Cap. 120).

In view of the foregoing, the question to answer here is whether the lower
court’s record bears evidence to prove the above two requirements of the
law?

In Court’s opinion the said record does not bear such evidence. On quick
thinking, one of the reasons why Court is of the above view is this: If
under the charge in count 1 the State failed to prove that the cigarettes
in question were illegally imported into Uganda it would logically follow
that being found in possession of such cigarettes was not an offence in
terms of section 320 of the Penal Code Act (Cap. 120). In any case, the
appellant disowned the shop where the police found the above cigarettes.
She insisted that the said shop belonged to one Stephen Mugenyi.
Indeed, Katende Joseph (- i.e. DW2 – an officer from the revenue section
of Luwero Town Council) corroborated the appellant’s defence by
producing a trading licence for the above shop that was in the names of
Stephen Mugenyi. Therefore, because such evidence exists on the record
of the lower court the question as to who had possession of the above
cigarettes at the material time becomes tricky. However, Court thinks
that in such situation it is reasonable to assume that the holder of the
above trading licence was the owner of all the merchandise in the shop in
question; and that being the case that person was in constructive
possession of the above cigarettes, at the material time, as opposed to
the appellant who might have been a mere employee at that shop.

All in all, therefore, this Court is of the opinion that the learned trial
Magistrate erred in law and in fact in convicting the appellant of the
charge in count 2.

17. Forgery

2.2.3 Forgery
Forgery is the process of making, adapting, or imitating objects or
documents with the intent to deceive. Forgery is defined by section 342
of the Penal Code as the making of a false document with intent to
defraud or to deceive. The effect of forgery is that a person knowingly

41
makes a false document or writing with intent that it may in any way be
used or acted upon as genuine and with intent to defraud or deceive.
Section 347 of the Penal Code Act provides that any person who forges
any document commits an offence.

In Uganda, forgeries are reported to be done to enable people get

academic documents such as transcripts, driving permits, identity cards,
pay slips, licenses, land titles and many other important government and
corporate documents. In case of Nsubuga Gerald & Anor Vs Uganda the
second appellant Angelo Muwanga’s conviction was upheld for having
forged signatures on land transfer forms in order to acquire registration.

Ingredients
Falsity
Forgery requires the making of a document and a document means a
writing in some form. Under section 343, a document does not include a
trade mark or any other sign used in connection with acts of commerce.
A document is not only a writing based on paper but it also includes that
which is based on wood, stone or metal. Not only it must be a document,
but the document must be false for it to be forgery. Section 345 of the
Penal Code provides for circumstances in which falsity may arise. These
are:
(1) making a document purporting to be what in fact it is not. For
example where a person manufactures his own university
transcript;
(2) altering a document without authority in such a manner that if the
alteration had been authorised it would have altered the effect of
the document, for example, where a tax receipt of they year 2000 is
altered to appear as a 2009 tax receipt;
(3) Introducing into a document without authority while it is being
drawn up a matter which if it had been authorised would have
altered the effect of the document. for example where a cheque is
drawn for Shs.100,000 and a person adds three Zeros to the figure
to read Shs. 100,000,000.

In Wagachira v R,73 the accused in order to make it appear that he had

lawfully bought a bicycle altered the cash receipt from the cycle shop. He
did this by erasing the pencil ink on the receipt referring to a cycle bell
and wrote in pen ink that it was sale of a bicycle. The cash receipt was
held to be a false document. In the case of Singh v R, the accused was
required to make a written statement of defence in a civil suit by 22 nd of
March 1957. Instead, he took the statement of defence to the
magistrate’s clerk on the 23rd of March and while no body was watching,

73
[1957] EA 808

42
he stamped the document with the official stamp dated 22 nd March. It
was held that this was a forgery since the date was material and the
alteration would thus alter the effect of the document by making it
appear as though it was filed in time.
(4) If the effect of the instrument depends upon the identity between
the person signing the document and the person whom he or she
professes to be, signing a document—
(i) in the name of any person without his or her authority;
(ii) in the name of any fictitious person alleged to exist;
(iii) in the name represented as being the name of a different
person from that of the person signing it and intended to
be mistaken for the name of that person;
(iv) In the name of a person personated by the person signing
the document. In R V Potter,74 the accused personated his
brother in a driving test and signed the examiner’s book
and certificate of competence in his brother’s name. The
signature was held to be a forgery.
Patel V R 26 K.L.R 72
Document is defined in section 343 of the Penal Code not to include does
not include a trademark or any other sign used in connection with
articles of commerce though they may be written or printed. In essence,
a document includes a register, a register book or part of either and any
paper parchment or other material whatever, used for writing or printing
which is marked with any letters or marks denoting words.

The false document must also have been made with intent to defraud or
deceive. To deceive is to induce a person to believe that a thing is true
when it is false and which the person practicing the deceit knows or
believes it to be false. To defraud is to induce a person to act on his
injury by way of deceit.

The falsity must be the purport of the document and not its contents. In
Baigumamu v Uganda,75 the appellant was charged with forgery, uttering
a false document and with theft. He was convicted on all the three
counts. He had received Shs. 30/= and had issued a receipt of that sum.
He had filled in the duplicate of the receipt with the figure of Shs/=. The
difference of Shs. 15/= had not been accounted for. On appeal, it was
held that the appellant was not guilty of forgery as the falsity must be of
the purport of the document and, not its contents. The document must
tell a lie about itself. That forgery consists of the making of a false
document with intent to defraud or deceive. The victim in this case had
in fact paid Shs. 30/= and had received the said receipt for that sum he
was in no way defrauded or deceived even though the appellant filled in

74
[1958] 2 All ER 51
75
[1973] EA 26.

43
what purported to be a duplicate copy of the receipt with the figure Shs.
15/= for which he would be accountable and converted the balance of
Shs. 15/= to his own use. The appellant would have been guilty of
fraudulent false accounting but not forgery.

18. Uttering False Documents

Under section 351 of the Penal Code Act, any person who knowingly and
fraudulently utters a false document commits an offence of the same
kind and is liable to the same punishment as if he or she had forged the
thing in question.

In the Attorney-General of Uganda v. Gaburiel Ottii, 76 the respondent

was changed inter alia with uttering a false document, namely, a driving
permit. The magistrate who tried the case made no finding whether the
respondent knew the driving permit was false, but he held that the word
“fraudulently” in section330 (now section 351) connotes the causing of
some economic loss and, therefore, acquitted the respondent. The
attorney-general appealed on the ground that the magistrate was wrong
in the meaning he give to the word “fraudulently.” It was held that an
intention to cause economic loss is not a necessary ingredient of the
offence created by s. 330 of the Penal Code, but since knowledge of the
falsity of the document uttered is an ingredient of that offence the case
should be remitted to arrive at a finding on that question.

19. Malicious Damage to Property

Under section 327 of the Penal Code, it is an offence for any person to
willfully and unlawfully destroy or damage any property.

Ingredients
Willfully and unlawfully
This means that the damage must be contrary to the law and be caused
intentionally or recklessly. It is not enough that D intended to do an act
which caused the damage unless he intended to cause the damage; proof
that D intended to throw a stone is not proof that he intended to break
the window. Nor is it enough that D intends to damage property of
another; D commits no offence in intentionally damaging property if he
believes, wrongly as it turns out, that the property is his own. 77

Recklessness in this context connotes foresight of the consequences.

This interpretation was endorsed by the English Court of Appeal in
Stephenson v. R.78 The accused was sleeping rough, started a fire in the
side of a stack of straw to warm himself. The fire spread and the stack
was destroyed. The court held that ‘a man is reckless when he carries
76
[1957]EA 341.
77
Smith & Hogan. 633.
78
[1979] QB 695, [1979] 2 All ER 1198.

44
out the deliberate act appreciating that there is a risk that damage to
property may result from his act. It is however not the taking of every
risk which could properly be described as reckless. The risk must be one
which it is in all circumstances unreasonable to him to take.’

In Caldwell v. R79 Lord Diplock rejected the view that recklessness

necessarily involved foresight by the accused of the possible
consequences of his conduct. That a person is reckless as to whether any
property would be destroyed or damaged if (i) he does an act which in
fact creates an obvious risk that property will be destroyed or damaged
and (ii) when does the act he either has not given any thought to the
possibility of there being any such risk or has recognized that there was
some risk involved and has none the less gone on to do it.

For example where a person throws a stone at the crowd and the stone
misses the crowd but breaks a window. The prosecution must at least
prove that the accused had foresight that the window might be broken,
i.e. that he acted recklessly. In the case of R v. Mohamedali 21 KLR 45,
the accused picked a quarrel with a person sitting in a car. He struck at
the person in the motorcar and in doing so, damaged the car. His
defence was that he did not willfully damage the car because his
intention was to strike the occupant. The supreme court of Kenya held:
willfully has been described as meaning deliberately and intentionally
and not by accident or in advertence. Although the accused achieved a
result that he did not intend, he achieved it in circumstances which
showed that he was reckless as to that result and to act recklessly is to
act willfully’. The conviction of willfully and unlawfully damaging a
motorcar stood.

It is essential that the damage occurs without a lawful excuse.

Accordingly, a police officer who, in order to execute a warrant of arrest,
has to force open the door of the house is acting with lawful excuse
although he intends to damage the door or the lock.

20. Cheque Fraud

Cheque Fraud is the forgery, alteration, counterfeiting, or knowing
issuance of a cheque on an account that has been closed or has
insufficient funds to cover the amount for which the cheque was written.
Under section 354 of the Penal Code Act, any person who, with intent to
defraud obliterates, adds to or alters the crossing on a cheque; or
knowingly utters a crossed cheque, the crossing on which has been
obliterated, added to or altered, commits a felony and is liable to
imprisonment for seven years.

79
[1981] 1 All ER 961.

45
A variety of techniques are used to commit cheque fraud, including such
practices as writing cheques on closed accounts, having insufficient
funds in an account to cover a cheque, opening fictitious accounts, the
alteration of an original cheque, forgery, and counterfeiting.

Closed account fraud, or “paperhanging,” occurs when cheques are

written against an account that has already been closed. This type of
cheque fraud relies upon the time that it takes a bank transaction to be
processed or “float time.” The float time offers a window of opportunity
for the criminal to defraud the financial institution. A suspect will
typically attempt to cash a cheque at a local branch of the bank or at a
place of business within a short time after closing the account on which
the cheque is drawn.

An act similar to closed account fraud is known as cheque kiting.

Cheque kiting requires multiple bank accounts and the movement of
fictitious funds between those multiple bank accounts. Like closed
account fraud, the cheque kiter also takes advantage of the time that it
takes for a bank transaction to be processed in order to create fraudulent
balances. A cheque kiter will deposit a checkcheque drawn on one bank
into a second bank without having adequate funds in the first account to
cover the cheque. When the deposit is made, the second bank grants the
depositor credit, allowing the customer to draw cheques against funds
not yet collected by the bank. The checkcheque kiter then writes a
cheque on the second bank account and deposits it into the first bank to
cover the original cheque. The perpetrator’s plan is to continue writing
cheques between accounts to cover insufficient funds. Banks attempt to
protect themselves from this kind of fraud by holding deposits for several
days to make sure that a deposited cheque “clears” (meaning it has
successfully been converted into cash). In a well-known corporate version
of this offense in United States, E.F. Hutton pled guilty during the 1980s
for misusing the “float” time between when cheques were deposited and
when they cleared. The company essentially received interest-free use of
funds it was holding for others. The company paid a $2 million fine.

Cheque fraud can be facilitated through new accounts opened under

false information such as in cases of identity theft. After depositing
altered or counterfeited cheques into the account, the offender then
makes withdrawals for a large portion of the account balance before the
bank realizes it has been victimized.

The process of altering a checkcheque is another form of checkcheque

fraud. Be consistent with the word cheque. Chemical modification to
checkcheques or “checkcheque washing” is one of the most popular

46
forms of alteration. Cheque washers use acid-based household chemical
solutions to alter or erase particular pieces of information on the
checkcheques such as payee name and payment amount. Cheque
washers may then add new information to the checkcheques using a
typewriter, laser printer, or other means in order to make the cheques
payable to themselves or to co-conspirators while also increasing the
amount payable.

21. CORRUPTION
21.1 Corruption

Defination
Corruption is defined as abuse of office or authority for
personal gain. This is an act usually implying money or gift given that
alters the behaviour /decision of the recipient in ways not consistent
with the duties of that person or in breach of law. Under the Anti
Corruption Act of 2009 there several instances where one commits the
offence of corruption. These include: solicitation of acceptance; offering
or granting; diversion or use by public officials; offering or giving or
solicitation; fraudulent acquisition of property and neglect of duty for
personal gain.

Offences that constitute Corruption

Under section 2 (1) of the Anti-corruption 2009, a person commits
corruption under the following circumustances:

a) A public officer asking for directly or indirectly or accepting of any

thing in exchange of doing or not doing his/her work;
b) Giving any thing to a public official in exchange for something for or
against his/her work.
c) A public official using anything in his/her ffice for his/her own benefit;
d) Giving or promising to give, asking or accepting anything by any
person working for a private organisation/company for their own good in
exchange for him/her doing or not doing his work;
e) Giving, accepting, asking for directly or
indirectly by or to any power over any
person;
f) Illegally getting, using or not disclosing
property as a result of the above acts;
g) a public official acting or intentionally refusing
to act by for personal gain;
h) Ignoring of work.

Prove of gratification

47
It is always necessary to prove that the gratification was made corruptly.
In R v Akbarali K. Jetha,80 it was observed that ‘the essence of the offence
of official corruption is the motive which animates the giver. If he gives
either on account of some past act or omission in his favour, or with
hope of expectation that his gift may so influence the donee that
something may thereafter be done or omitted in his favour, the offence is
complete.’

In Sewa Singh Mandia v R,81 the appellant who was at the material time
a magistrate was charged and convicted of corruptly giving a bribe to a
police officer as an inducement to forbear from taking any proceedings
on a number of traffic offences which had allegedly been committed by
the driver of the motor vehicle in which the appellant was traveling. The
appellant admitted giving the money, his motive being to test the
constable as he had “heard of these things and wanted to know if this
was real.” The trial judge in convicting the appellant held that it was not
necessary for the prosecution to prove a corrupt motive but merely an
intention to corrupt the person to whom the offer was made. On appeal,
it was argued that the trial judge misdirected himself with regard to the
word ‘corruptly’ in the Prevention of Corruption Act. It was held that a
corrupt motive is an essential ingredient of an offence Under the
Prevention of Corruption Act and the appellant’s state of mind, which
included motive and intention was an essential and material factor in
determining whether he was acting corruptly or not. That the appellant’s
motive was innocent and was therefore wrongly convicted.

In Makubi v R82 the accused offered money to the executive officer who
was engaged in counting cattle for the purpose of a local rate. He was
charged with corruption. On his plea, the accused said that he had given
the money as an inducement to the executive officer not to include other
person’s cattle with those of the accused, which the executive officer was
proposing to do. On appeal, it was held that it is a necessary ingredient
of the offence of corruption that the act should be done corruptly, i.e.
with an ‘evil mind,’ but it was clear that there was no evil mind on the
part of the appellant.

The meaning of Corruptly giving or receiving

The meaning of corruptly giving or receiving has been discussed in a
number of cases. Sewa Singh Mandia v R,83 court made reference to the
case of Bradford Election Petition (No. 2)84 where Martin B stated

80
(1947), 14 EACA 122
81
[1996] EA 315.
82
[1968] EA 667.
83
[1996] EA 315.
84
(1896), 19 L.T. 723.

48
 “Now what is the meaning of that word ‘corruptly’? It is difficult to
tell; but I am satisfied that it means a thing done with an evil mind
or an evil intention; and except there be an evil mind or an evil
intention accompanying the ac, it is no corruptly done. 85

In Mandla v R,86 the meaning of the word ‘corrupt’ was discussed. The
court said ‘……the appellant’s state of mind which in our view included
motive and intention seems to us to be an essential and material factor
in determining whether in making the payment, he was acting corruptly
or not’.

In Kasam v R,87 corruption was discussed as to do an act with intent to

corrupt. In this case, the appellant had been convicted on a charge of
corruption in that he gave money to a police officer to obtain for him a
certificate which was regularly issued by the police. The appellant argued
that no offence had been committed since in offering the money to the
police officer to do what he was duty bound to do, the appellant was not
actuated by any improper motive, ill will or dishonest intention. The
court held that even if it was to ensure preferential and expeditious
processing of the certificate, this was a payment which was designed to
induce the officer to do something in relation to his principal affairs and
the payment was accordingly made corruptly.

The prosecution has only to prove that the accused received the gift as
an inducement to show favour. It is not required to prove that the person
did actually show favour in consequence of having received the gift. In
Uganda v Mukhalwe,88 the accused, a magistrate grade III was charged
with corruption. The evidence against him was that he was engaged in
trying a case in which one Maganda was the defendant; that he asked
Maganda for a bribe of Shs. 100/= and matoke; that Maganda reported
this to the police who laid a trap; and that Maganda, in sight of the
police, handed to him an unsealed envelope containing Shs. 30/= in
marked notes which he pocketed and which was found on him when he
was searched by the police. In his defence, the accused denied that he
had asked for a bribe or that he knew that the envelope contained
money; he admitted receiving the envelope but said that Maganda had
told him that it contained a letter for him; and that he had asked
Maganda to get him some matoke to buy. He was convicted and
sentences to a fine of 400/= with six months imprisonment in default.
The chief magistrate brought an application for a revisional order of the
High court on the grounds that what the accused received was not what
he had asked for; and that the essence of the offence of corruption is the
85
Ibid, p. 728.
86
[1966] EA at p. 318
87
[1972] EA 551.
88
[1968] EA 373.

49
agreement to allow one’s conduct to be influenced to be influenced and
there was no evidence that the accused made any such agreement on the
date specified in the charge. It was held that the question of what the
accused had asked for was irrelevant; the essence of the offence is the
agreement or offer to permit the accused’s conduct to be influenced. That
the acceptance of a gift by a public officer for the purpose of showing
fovaour to any person is sufficient to constitute the offence, although
there may not have been any particular arrangement between the donor
and the recipient. That the agreement or offer in the contemplation of
section 78 (1) of the Penal Code (now …………………) is not such as might
be required to constitute a contract or to ground the offence of
conspiracy but can be a matter of inference. In the present case, by
receiving a gift of Shs. 30/= and the implied acceptance of the matoke
which on the evidence he had ordered to be delivered to his residence
well knowing the purpose was to influence his decision in the case in
favour of Maganda sufficiently constitutes the mens rea required to
constitute the commission of the offence.

It is also not necessary to prove that the accused explicitly agreed to

show favour. This can be inferred from the surrounding circumstances.
In the case of R v Alule,89 the respondent, a police constable stopped the
complainant who had failed to stop when the traffic lights were showing
red. At police, the constable released the complainant after asking for
Shs 10 from the complainant who thinking it was bail asked for a receipt
but was told to go away. The respondent argued that he acquitted the
complainant in his own plea that as a country man, he was ignorant of
the traffic lights. The magistrate acquitted him on the ground that there
was no evidence that the respondent had agreed to permit his conduct to
be influenced by a gift. It was held that although the respondent did say
that he agreed to drop the charge, this was in fact what he did. That his
conduct in accepting the money, the respondent indicated that he had
decided to be influenced by it.

Receiving money
Receiving money in order to entrap the giver or making a tape-recording
does not amount to acting corruptly where it is intended to provide
evidence for the police. In Choda v R,90 the appellant was charged with
agreeing to conduct as a Muluka Chief to be influenced by a gift of Shs
20. The appellant caused J to be arrested for nonpayment of poll tax.
While in custody, the appellant counseled him to escape and would find
means of saving him for Shs 20. J escaped and went and reported the
appellant to police. J was given a Marked 20 shillings note which he
handed over to the appellant while two police officers in plain clothes

89
[1961] EA 728.
90
[1957] EA 495.

50
were watching. When approached by the police officers, the appellant
refused to be searched, put the note in the mouth and later threw it out
through the window. The note proved to be the marked note. In his
defence, the appellant argued that the case was a fabrication and denied
all the allegations against him. He argued further that the police in
setting up a trap were on evidence counseling and procuring J to commit
an offence. It was held that the appellant was not persuaded by J or the
police to commit an offence since he had himself already solicited for the
gift.

Bribery

Bribery is defined by Black's Law Dictionary as the offering, giving,

receiving, or soliciting of any item of value to influence the actions of an
official or other person in discharge of a public or legal duty . The bribe is
the gift bestowed to influence the recipient's conduct. It may be any
money, good, right in action, property, preferment, privilege, emolument,
object of value, advantage, or merely a promise or undertaking to induce
or influence the action, vote, or influence of a person in an official or
public capacity.

Section 5 of the Anti-corruption defines bribery to mean giving or

accepting to give a public official anything to do with the
following:
 To vote or not to vote in a public organisation
 or company.
 To do or not to do his/her duty illegally assisting the doing of the
things above.
 Accepting or asking for directly or indirectly anything by a public
official to do or not to do the above acts

In the case of Uganda Vs Moses Ndifuna91 Justice JB Katutsi convicted

the accused a Magistrate Grade 2 of Mbarara for having accepted a bribe
of 200,000 shillings to reverse an earlier order he had issued.

Corrupt dealings with agents

Section 3 provides that the following actions with agents are regarded as
corrupt by the Act:

 Accepting or agreeing to accept by an agent anything in exchange

for doing or not doing something while doing the principal’s work

91
Anti Corruption Court Division Session Case 6 of 2009 ( Unreported).

51
 whether the agent had or didn’t have the power, right or chance to
do the something or failing to do something whether or not in
favour of the principal’s work;

 Giving or agreeing to give anything to an agent to act or not doing a

thing in relation to his/her principal’s work;

 Giving or accepting by an agent any false records to mislead the

principal;

 Giving or allowing to give anything by an agent to do or not to do

anything in relation to his/her principal’s work;

 Giving or accepting or agreeing to accept anything from an agent in

exchange for an act or not acting in relation to his/her principal’s
work.

Corruptly getting tenders

Section 4 of the Anti-corruption Act defines corrupting getting tenders
as where someone gets a tender in an illegal way. Thus it is an offence
offence to :

 To make a public official to give or not to award a tender.

 Asking for directly or directly anything to illegally give or not give a
tender.
 The give out of any information by a public official for purposes of
getting a tender.

22. Abuse of Office or Misuse of Office

Under section 11 it is an offence for a worker doing anything which

injures the interests of his boss in an organisation/company in which
government has shares. This offence is punishable by imprisonment not
more than 7 years or a fine not more than 3,360,000/= or
both.

The definition of a public body of public office has been considered in the
case of Re Mirams92 it was stated that ‘to make an office public, the pay
must come out of the national and not out of the local funds and the
office must be public in the strict sense of the term. It is not enough that
the due discharge of the duties of the office should be for the public
benefit in a secondary and remote sense.’

Section 1 of the Anti Corruption Act 2009 provides a boarder definition of

92
[1891] 1 Q.B. 594.

52
public body” to include:

 the Government, any department, services or undertaking of the

Government;

 the East African Community, its institutions and corporations;the

Cabinet, Parliament, any court;

 district administration, a district council and any committee of a

district council local council and any committee of any such
council;

 any corporation, committee, board, commission or similar body

whether corporate or incorporate established by an Act of
Parliament for the purposes of any written law relating to the
public health or public undertakings of public utility, education or
for promotion of sports, literature, science, arts or any other
purpose for the benefit of the public or any section of the public to
administer funds or property belonging to or granted by the
Government or the East African Community, its institutions or its
corporations or money raised by public subscription, rates, taxes,
cess or charges in pursuance of any written law;

 a political party, a trade union, a society registered under the

Cooperative Societies Act and any council, board, committee or
society established by an Act of Parliament for the benefit,
regulation and control of any profession and non-governmental
organisations;

An act is said to be prejudicial if it contrary to the established procedures

and is also against the interest of the public body. In Barungi v Uganda,
the court held that an essential ingredient for the offence of abuse of
office was that the acts complained of should be prejudicial to the rights
of another and further that the right was an interest recognized and
protected by law in respect of which he has a duty and disregard or
which was wrong. Abuse of authority is acting beyond ones powers.
However, this is usually difficult too because most organizations do not
have operational manuals although in some cases it can be proved by
established procedure.

In Uganda V Atugonza93, Francis Atugonza is charged with Abuse of

Office, contrary to section 11(1) of the Anti Corruption Act. The
particulars of the charge are laid out in the amended indictment and
read as follows:
93
Crim. Case 37 of 2010.

53
“Francis Atugonza between December 2007 and December 2008 in Hoima
Town Council in Hoima District while serving as Chairman L.C. III (Mayor)
of the said Hoima Town Council did an arbitrary act in abuse of the
authority of his office and to the prejudice of Hoima Town Council to wit he
illegally sold an unsurveyed piece of land on Rwentuha Road in the said
Hoima Town Council, the ownership of which is vested in Hoima District
Land Board”.

The considered that the burden is on the prosecution to prove the charge
against the accused person beyond reasonable doubt. The following
ingredients of the offence must be proved:
(a)
That accused was employed in a public body or a company in which the
Government has shares,
(b) That accused did or directed to be done an arbitrary act,
(c) That the act was done in abuse of the authority of his office,
(d) That the arbitrary act was prejudicial to the interests of his or her
employer or any other person.

Court held that accused held a public office in the according of section
11(1) of the Anti corruption Act but acted as an individual but not in his
official capacity and did not abuse of Office or act arbitrary.

23. Stealing public funds (Embezzlement)

Any worker who steals anything belonging to his/her employer or

received on behalf of the employer to which he/she gets by working
there.

The offence of embezzlement refers to a situation where a person, who

being an employee, servant or officer of the government or public body; a
director, officer or employee of a company or corporation; a clerk or
servant employed by any person, association or religious or other
organisation; a member of an association or religious organisation steals
any chattel, money or valuable security- being the property of his or her
employer, association, company, corporation, person or religious or other
organisation; received or taken into possession by him or her for or on
account of his or her employer, association, company, corporation,
person or religious or other organisation; or to which he or she has
access by virtue of his or her office.

Embezzlement refers to the “misappropriation or misapplication of

money or property entrusted to one’s care, custody, or control.”

54
Embezzlement is also defined under section 19 of the Anti Corruption Act
of 2009, to mean a situation where an employee, a director, a clerk or
servant, member of an association steals any property to which he or she
has access by virtue of his or her office.

Ingredients :
The ingredients of the offence of embezzlement with regard to
government employment were spelt out in the case of Abahikye Moses
Versus Uganda 94 to be the following:
(a) That the accused is employed by the government;
(b) That he stole employer’s property i.e. money or any other chattel
capable of being stolen;
(c) That the property came into his possession by virtue of his
employment.

With regard to private employment, the ingredients of the offence of

embezzlement were discussed in the case of Nuuhu Kalyesubula, Kato
Chicago And Ruth Barya Versus Uganda95 arising out of Section 268 of
the Penal Code Act and currently Section 19 of the Anti Corruption Act to
be the following:
“Any person who being:-
(a) ..........................................
(b) A director, officer or employee of a company or corporation;
(c) ....................................
(d) .....................steals any chattel, money or valuable security-
(e) Being the property of his or her employer,
(f) ........................................
(g) To which he or she has access by virtue of his or her office,
commits the offence of embezzlement.
The offence of causing financial loss refers to a situation where any
person employed by the Government, a bank, a credit institution, an
insurance company or public body, who in the performance of his or her
duties, does any act or omits to do any act knowing or having reason to
believe that such act or omission will cause financial loss to the
Government, bank, credit institution, insurance company, public body,
or credit institution.

The term “loss’’ was also defined in the case of Kassim Mpanga Versus
Uganda96 to mean inter alia a detriment or disadvantage resulting from
deprivation. Put differently, to suffer loss is to cease to possess
something, to be deprived of or part with something of one’s possession.
It was further held that “loss” is generic and relative term. It signifies the
act of losing or the thing lost; it is not a word of limited, hard and fast
94
High Court Appeal No 0010 of 2009.
95
Court of Appeal No 70 of 2008.
96
Supreme Court Criminal Session No 30 of 1994.

55
meaning, and has been held to be synonymous with or equivalent to
“damage”, “damages”, :deprivation”, “detriment”, “injury” and “privation”.

In Uganda v. Teddy Ssezi Cheeye,97 it was held by Justice Katutsi J.B.A

that the offence of embezzlement is committed where a person being a
Director, Officer or Employee of a Company steals any chattel / money or
valuable security, to which he or she has access by virtue of his or her
office. That the prosecution must prove the following ingredients:
(a) that there was a Company.
(b) accused was a Director, Official or Employee of that Company.
(c) that he had access to the Company's property
(d) and that accessibility enabled him to steal money belonging to the
Company.

The offence attracts a sentence of imprisonment for not less than three
years and not more than fourteen years. 98 Where a person is convicted of
embezzlement, the court shall, in addition to the punishment provided
under section 268, 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 suffered by the aggrieved party. 99 In Eza Sebufu
v Uganda,100 the appellant was charged with embezzlement, convicted
and sentenced to 12 months imprisonment. The prosecution led evidence
alleging that the accused was a cashier in a business of dry cleaners. At
this business, no clothes were ever given out to customers without
having first been paid for. Upon auditing, it was discovered that Shs.
437,000 was missing and yet the clothes indicated as having not been
paid for were already given to their owners. The appellant appealed on
the ground that the trial court failed to properly evaluate the evidence.
He had also appealed against sentence but this ground was abandoned.

It was held that as per section 275 (now 268) of the Penal Code Act, a
conviction for embezzlement carries a minimum sentence of 3 years and
therefore the sentence of 12 months imprisonment would be set aside for
being illegal. It was also held that section 259 (now 270) of the Penal
code Act provides for a mandatory order for compensation against a
person convicted of embezzlement. Therefore, the learned magistrate
erred when he failed to impose the mandatory order.

The ways that an employee can steal from an organization depend on a

number of factors, including the type of money or properties that have
been entrusted to the individual, and the access to company funds that
the individual might be allowed because of their position. For example, a
97
High Court Criminal Case No. 1254 of 2008.
98
Section 268 of the Penal Code Act.
99
Ibid, section 270.
100
[1995] V KALR 40.

56
department store cashier might steal from a cash register, fail to ring up
purchases, or take merchandise from storage rooms or receiving areas.
Other employees with more access within the company might cheat on
expense accounts, or misappropriate funds through billing, inventory, or
payroll schemes.

Companies formed for fraudulent purposes

Another new trend in the commission of the offences of embezzlement

and causing financial loss is that some companies/ organisations are
formed specifically with the sole aim of committing the offences. A case in
point is the case of Uganda versus Balikoowa Nixon and Kasaga
Joshua.101 In this case the accused formed a company known as Dutch
International Limited and any member of the public who wished to join
would apply to be a member therein. The members were made to pay
membership fees and afterwards made to pay deposits. At the end of
every thirty one (31) working days, the members would be given some
money as Principal and interest. This went on for a few months and
members got confidence in the system and even recruited many others
into the company and the cycle. After some time, the accused convinced
their members not to withdraw money monthly but to leave it to
accumulate more interest so that they withdraw at once and in much
larger sums. Because they had gained confidence in the system and the
suggestion seemed to be to their benefit, they duly complied. After the
money had accumulated, the accused closed business premises,
switched off their phones and disappeared from their known areas of
operation. So many people country wide in the districts of Kampala,
Jinja, Mbale, Mbarara and Kapchorwa where the accused had opened
branches and were duly operating lost large sums of money. Later when
the members reported the matter to police, investigations commenced
and the Directors were eventually arrested. Their personal bank
accounts were inspected and were found to have huge sums of money
thereon. On the contrary, the Company accounts where deposits of
members were supposed to be kept had been closed with no money
thereon. The matter is currently being prosecuted in the Anti Corruption
Division of the High Court.

In Uganda versus Balikoowa Nixon and Another102 it was established that

before forming Dutch International, the accused and others who have
not been arraigned had earlier on formed another company in the names
of Caring For Orphans, Widows and the Elderly (COWE) which they used
to defraud the members of public of colossal sums of money which they
had illegally collected from them promising to repay the principal deposit

101
102
Criminal Session No 64 of 2010.

57
and interest of 30% after thirty one (31) working days. This went on for
some time and later the accused closed business and disappeared having
defrauded so many people. Following complaints from the various victims
of COWE, police instituted investigations leading to case reference
number Kabale CRB 539/2007 In March 2011, Balikoowa Nixon was
convicted of embezzlement of Uganda Shillings 225,195,000 (Two
hundred and twenty five million, one hundred and ninety five thousand
shillings only). He was sentenced to four years imprisonment and also
ordered to compensate the various victims’ money totalling the above
sum. Balikoowa is currently serving that prison term of sentence while
facing charges under Dutch International discussed in the preceding
paragraph. It is however, worth noting that the accused was not working
alone and some of the people he was working with have not been
arrested and the likelihood that they will re-organise themselves and
start a similar scheme again to defraud members of the public is very
high.

Another case involved Makindye Division in the Kampala City Council in

the Kampala District in Uganda versus Ssemuwemba Benedict and
others103 in the case the accused who were employees within Makindye
Division of Kampala City Council in the Kampala District formed various
companies one called KIKA Ltd and another PSALMS 24:1 whose sole
purpose was to defraud the Division of colossal sums of money. They
opened bank accounts for each company in different banks. They
purported that those companies had on various occasions at various
places done and completed drainage works for the Division. The Division
engineer also in collusion issued certificates of completion confirming
that indeed the companies had done work satisfactorily and
recommended to the Accounting officer to pay the companies. Because
the Accounting officer believed in the Certificate of completion, he
approved payment to the companies and indeed, the accounts
Department wired Uganda Shillings One hundred and fifty Million (Ushs
150,000,000) on the various company bank accounts. It was after a
whistle blower informed the Accounting officer that he had approved
payment for no work done that the latter also went on the ground to
physically inspect and he found no single piece of work had been done.
His attempt and effort to block the money on the bank accounts were
fruitless because by that time, all the money that had been deposited
thereon had been withdrawn. Investigations revealed that the accused
was a Director in both companies and on being interrogated, he admitted
the offence and even confirmed that he had formed the two companies
with the sole purpose of defrauding the Division. It was also established
that he did this with the knowledge and connivance of the Division
engineer and the Cashier. They were all charged with Causing Financial

103
CID Headquaters E/331/2008 and CID Headquaters GEF 475/2008.

58
loss of Uganda Shillings One hundred and fifty million (Ushs
150,000,000) to the Division and the matter is under hearing before the
Anti Corruption Division of the High Court.

24. Loss of public money or Causing Financial Loss

Under section 20 it is an offence for any worker who does anything

knowing or having reasons to believe that it will cause financial loss to
his/her employer commits an offence. The above offences are liable to
imprisonment not exceeding 14 years or a fine not exceeding
6,720,000/=.

Ingredients:

Public Body

It was also held in the case of Uganda Versus B.S Okello, Ocira George
and Okot Jalon104 by Hon. Justice Paul Mugamba that Causing Financial
Loss is an offence committed when any person employed by a public
body, for instance in this case the East Acholi Co-operative Union Ltd, in
the performance of his duties does any act or omits to do any act
knowing or having reason to believe that such act or omission will cause
financial loss to the public body.

Knowingly or having reason to believe that the act or mission will cause
financial loss

In 2006, Standard Chartered Bank realised that the bank had lost
Uganda Shillings five billion (Ushs 5,000,000,000) within a period of five
years due to collusion and connivance of bank employees in different
sections. This resulted into the case of Uganda versus Benjamin Mugume
and five others.105 In this case, the six accused persons were all
employees of Standard Chartered Bank Speke Road branch. Two were
working in the Central Cash office which keeps all the monies in the
bank and disburses it to other offices every morning. The other two were
in charge of the Automated Teller Machines (ATM) while the rest were in
charge of Tellers. The reason why each department had at least two
people was for the purpose of checking on one another. However, they all
ended up on colluding and conniving thereby causing the bank a
financial loss of large sums of money. The officials in charge of Central
cash would withdrawal money purportedly for the tellers and the

104
High Court Appeal No 008 of 2009.
105
CID Headquaters E/767/ 2006.

59
Automatic Teller Machines but the cash would not be posted to their
destinations. Instead, it would be diverted to the benefit of individuals
with the knowledge of all the six employees. This went on un detected for
a period of five years because there was no simultaneous checking. It
was when the top officials of the bank decided to check all departments
simultaneously that this fraud was discovered. By this time, the bank
had lost about Five billion Uganda Shillings (Ushs 5,000,000,000). The
accused are currently facing charges of Causing Financial loss before the
Anti Corruption Division of the High Court.

Financial loss
Uganda versus Eng. Bagonza Samson106, the accused was charged with
Causing Financial loss contrary to Section 20 (1) of the Anti Corruption
Act. The particulars of offence were that “Eng. SAMSON BAGONZA while
employed by the Ministry of Works and Transport as Engineer –in-
Chief/ Director of Engineering between 2007- 2009 in Kampala District
and Entebbe Municipality, in the performance of his duties did approve
payment of additional Shs 1,645,145,325 ( One billion six hundred forty
five million, one hundred forty five thousand, three hundred and twenty
five) to M/S Energo Uganda Co. Ltd for the purported construction of
additional works on Entebbe- Zana- Kibuye High way knowing or having
reason to believe that such an act would cause loss to the Ministry of
Works and Transport.
It was held that the ingredients to prove in the instant case were the
following:
(a) That the accused person approved for payment of additional Shs
1,645,145,325 to M/S Energo (U) Ltd;
(b) That he knew or had reason to believe that such an act would
cause financial loss to the ministry of Works and Transport;
(c) Loss was incurred.

In the case of Uganda Versus Dr. Sam Kamba107, the accused was
charged with the offence of embezzlement contrary to Section 19 (a) (iii)
of the Anti Corruption Act and in the alternative, Causing Financial Loss
contrary to section 20(1) of the Anti Corruption Act. Hon Justice Paul
Mugamba acquitted the accused of the offence of embezzlement but
convicted him of the offence of Causing Financial loss stating that “There
is undisputed evidence that the accused requested for and was advanced
the money in issue in performance of his duties. He was to make an
account for that money and never did. That money is now lost to the
detriment of the government of Uganda. Needless to say, the money, that
is Shs 37,074,400 was never returned. Thus, it has been lost to the

106
Anti Corruption Division High Court Criminal Session No 009/2009.
107
Criminal Session No 41 of 2010.

60
government of Uganda. Loss is the state of no longer having something
after all.”

The offence of causing financial loss refers to a situation where any

person employed by the Government, a bank, a credit institution, an
insurance company or public body, who in the performance of his or her
duties, does any act or omits to do any act knowing or having reason to
believe that such act or omission will cause financial loss to the
Government, bank, credit institution, insurance company, public body,
or credit institution.

The term “loss’’ was also defined in the case of Kassim Mpanga Versus
Uganda108 to mean inter alia a detriment or disadvantage resulting from
deprivation. Put differently, to suffer loss is to cease to possess
something, to be deprived of or part with something of one’s possession.
It was further held that “loss” is generic and relative term. It signifies the
act of losing or the thing lost; it is not a word of limited, hard and fast
meaning, and has been held to be synonymous with or equivalent to
“damage”, “damages”, :deprivation”, “detriment”, “injury” and “privation”.

It was also held in the case of Uganda Versus B.S Okello, Ocira George
and Okot Jalon109 by Hon. Justice Paul Mugamba that Causing Financial
Loss is an offence committed when any person employed by a public
body, for instance in this case the East Acholi Co-operative Union Ltd, in
the performance of his duties does any act or omits to do any act
knowing or having reason to believe that such act or omission will cause
financial loss to the public body.

25. Other Offences

Illegal Interest in administration of public
Under Section 16 it is an offence where where a person in public service
is given judicial or administrative duties relating to property of a special
character or manufacturing/trading either gets private interest in the
property or does work in respect of that property in which he/she has
interest. The person is liable to three years imprisonment or
1,440,000/= upon conviction.

Changing use of public resources

Under section 6 is an offence where a person changes the use of public
resources for any anything other than its intended use.

108
Supreme Court Criminal Appeal No. 30 of 1994.
109
High Court Appeal No, 008 of 2009.

61
Using your office to wrongfully get some
thing (Influence Peddling)
Under section 7 it is an offence to do or not to do anything as a result of
wrongful methods by someone for their own or any other person’s
benefit.

Unfair favours (sectarianism)

Under section 12 it is an offence for any person holding an office does

anything connected with that office while giving unfair advantage to
another person basing on their religion or sect, ethnic group or place of
origin.

Unfair favours family members

(Nepotism)
Under Section 13 it is an offence for any person holding any office and
acts in connection to that office while intentionally favouring any person
relying on the blood relation with that person (relatives).

Loss of Public Property

This is an offence under 14.
This covers any of the following acts:
 Loss of public property whether one knows or does not know that
this property will get lost because of their actions or omission.
 Damage or loss of any public property under the care of a public
official.
 A public official misusing or allowing misuse of public property
under his/her care.

On conviction, all the above offences are punishable

by imprisonment not more than 10 years or a fine not
more than 4,800,000/= or both.

Doing something where you have an interest (conflict of Interest)

Under section 9 it an offence where an anyone knows that his/her
family/friend has an interest or influence in something but does
not make known that interest and goes ahead to take
part in the process or even vote on the matter. This offence is punishable
by imprisonment not more than 12 years or a fine not more than
100,000,000/= or both.

Unauthorised Administration of Oaths

Under section 15 it is an offence for any person who is not a magistrate

but administers an oath and any other affirmation without the power

62
to do so commits an offence and is liable to two years imprisonment or a
fine of 960,000/= upon conviction.

Falsely assuming Authority

Under section 16 it is an offence for any person who falsely acts as a
judicial officer and administers an oath, signs a document without any
power to do so.

Pretending to be a Public Officer

Under section 17 it is an offence for any person who pretends to be a

public official to take control of any occasion or pretends to be a public
Official.

Threatening Public Officials

Under section 18 it is an offence for any person who threatens to injure a
public official to make him/her to do or not to do anything relating to
his/her work .

False Accounting by a Public Official

Under section 22 it is an offence for any person taking care of public
money or property but knowingly gives a wrong statement of that money
or property.

False claims by Officials

Under section 22 it is an offence for a public servant who supposed to
give any information on a matter to be certified commits an offence if
he/she gives a wrong statement.

False certificates by Public Officers

Under section 25 it is an offence for any person supposed to give a
certificate on anything which may affect other but gives a certificate
which is wrong commits an offence. On conviction, the above
offences are liable to imprisonment not more than three years or a fine
not more than 1,400,000/= upon conviction.

Wrongful selling of Public Property

Under section 21 it is an offence for any trustee, intending to cheat and
misuse the property
under the trust, or destroys it, commits an offence.

False Accounting

Under section 23 it is an offence for any servant or clerk who with

intentions of cheating makes an entry in his/her employer’s book

63
commits an offence. On conviction, persons who commit the above
offences are liable to imprisonment not more than 7
years or 3,360,000/= or both.

Getting rich Wrongfully (Illicit

Enrichment)
Under section 31 it is an offence for any person who illegally makes
himself/herself rich and is liable upon conviction to imprisonment not
more than 10 years or a fine not more than 4,800,000/= or both.

64