The appellant submitted in regard to sentence that the trial Judge failed to consider the appellant's remand period while passing sentence. That the award of fines would have been sufficient instead of a custodial sentence.
THE REPUBLIC OF UGANDA
IN THE COURT OF APPEAL OF UGANDA AT KAMPALA
CRIMINAL APPEAL NO. 083 OF
(Arising from High Court (Anti:CorruptionDivision) HCT-00-AC-SC-
GEOFFREY KAZI..NDA .•..•.........................•.•.•...................• APPELLANT
10 CORAM: HON. JUSTICE
GEOFFREY KIRYABWIRE, JA HON. JUSTICE STEPHEN
HON. JUSTICE PERCY NIGHT TUHAISE, JA
JUDGMENT OF COURT
The appellant was indicted
convicted of the offences
of Abuse of
Office contrary to section 11(1) and (2) of the Anti-corruption Act
2009 and sentenced
to 5 years
imprisonment; Forgery cjs 342 and
347 of the Penal Code Act and sentenced to 2 years imprisonment on
each of the 37 counts; Making documents without authority c/
20 355(a) of the Penal Code Act and sentenced to
5 years imprisonment; unlawful possession of government
stores cjs 316(2) of the
Penal Code Act and sentenced to 2 years imprisonment. All sentences imposed were to run concurrently.
The appellant appeals to this court against both conviction
25 sentence on the following grounds;
1. The learned trial Judge erred in law and fact when he failed to properly evaluate the whole evidence and relied
on insufficient, uncorroborated and incredible evidence
to come to a wrong
that Exhibits P3,
and Pll were
recovered from the room of Peter Lubulwa in Teopista Nanfuka's home.
learned trial Judge erred in law and fact when he
applied a lower burden of proof in cases hinged upon circumstantial evidence
5 to make a wrong finding that the
appellant exercised dominion
over exhibits P3, PS(a-f), PlO and Pll.
learned trial Judge erred in
law and fact when he
the appellant of constructive possession of documents in
Nanfuka's home without making
a finding of whether the appellant
10 was aware of the presence and character of the documents in the house.
4. The learned trial Judge erred in law and fact
made a fmding that
PW9's signature on Exhibit P.3 was forged.
5. The learned trial Judge erred in law and fact
15 appellant of forgery
abuse of office,
on the wrong premise
the appellant possessed
the documents allegedly
the home of
6. The learned trial Judge erred in law and fact
he convicted the appellant of creating a document without
authority whose facts
20 are akin to the offence
7. The learned trial
law and fact when he did not resolve ambiguity as to whether PW9 authorised addition
of the two companies in
Exhibit P-3 in
favour of the
appellant, and convicted him as such.
25 8. The learned trial Judge erred in law and
used wrong aggravating
circumstances to outweigh the appellant's
mitigating factors and thereby
imposed harsh and excessive prison terms.
learned trial Judge erred
in law and fact when he
30 the appellant more than once for the same act.
10. The learned trial Judge erred in law and fact when he
on wrong sentencing principles to sentence the appellant severely.
The appellant was employed by the Government of Uganda
Principal Accountant in the Office of the Prime Minister between
2oo7 and July 2012. Mid-May 2012,
the appellant's health
s deteriorated and was granted sick leave ending 9th July 2012 but
return, he was
replaced with another Principal
On 18th July 2012,
in a complaint to the Inspector General of Police (PW9),
the appellant was declared away without
leave. On 22nd July 2012, in absence of the appellant a search was
10 conducted in the house of
Teopista Nanfuka (the appellant's mother) and it was alleged
that government documents belonging
to Office of
the room of Peter Lubulwa
The said documents were recorded on the
which was exhibited P8.
15 The prosecution case was that the documents recovered were in three categories; cash withdraw forms marked exhibit
are used by government departments to withdraw cash from Bank of Uganda.
The second category were security papers
marked exhibit P3 and PS (a-f) which
are documents used by government departments to effect
20 funds from one account to another.
The third category were letters
addressed to the
Director Banking marked as exhibit P.ll. The prosecution case was that the signatures attributed
to Pius Bigirimana from the recovered documents were forged and as such taken to a forensic examiner, PWll, who confirmed the suspicion.
25 Following these events, the appellant was indicted and convicted of the above offences.
At the hearing of this appeal, the appellant represented
himself while the respondent was represented by
Mr. Jonathan Okello Senior State
30 Attorney with the Director of Public Prosecutions (DPP).
The parties filed written submissions.
Submissions of the appellant
The appellant submitted that ground 1 has a number of issues for
this court to resolve including whether
the documents were
recovered from one location, the issue of why the items where
not shown to any
5 member of the search party during examination in chief; the tendered
appearances differ from the descriptions of documents
to bring key witnesses.
that the learned trial Judge ignored grave inconsistencies
and contradictions in the search certificate (exhibit P8) which goes to
10 the root of the
case. PW8 stated that he did not read
even though he
signed it. PW10 Wamala Fredrick also stated that he did not see any cash withdraw
authority form and yet it was included in
prosecution. PW10 also simply signed the search certificate as directed. The appellant contends
15 the said items were not actually recovered from the home
as alleged by the prosecution but
to strengthen the
PW3 tendered in exhibit P.3 as a document
served on te the Office
of the Prime Minister by Bank of Uganda
not as one recovered from the
20 home of Nanfuka Teopista as was misconstrued by the learned trial
Judge. In addition, that there were tendered
differ from the description of documents allegedly
recovered. According to exhibit P.8, the recovered cash withdraw
forms had both signatures of Geoffrey Kazinda, the appellant herein
of Pius Bigirimana
and a stamp.
in court had only the
Bigirimana which meant these were different
In regard to the photographic evidence, the appellant submitted that
30 what was alleged
not actually photographed and there is no photograph of
what was recorded.
PW14 could not have
the photographs at the scene yet he was never
That the documents reflected in
evidence in exhibit P.lS related
to the documents of transfer of funds
35 which were a continuation of search which
PW14 did not witness. The failure to produce key witnesses like Peter Lubulwa
and Nanfuka Teopista
to explain how
reached their house was a big gap in the evidence
of the prosecution.
to ground 2, the appellant cited the case of Padala Veera Reddy Vs State of
Andhra Pradesha and others AIR 1990 SC 79 in which it was
a case rests upon
evidence the circumstances from which an inference
of guilt is
sought to' be drawn
be cogently and firmly established.
exhibit P3 did not feature in any of the photographs exhibited and its
10 descriptions was disowned by PW8 and PWlO. That it was
unreasonable for the trial Judge
to infer that the appellant's personal
letter was co-mingled with the exhibits yet it was not included in the search certificate.
Further that there was
no evidence on record to find
15 guilty of constructive possession of the documents basing on
dominion of the appellant
to the home of Nanfuka
whereas the home
was rented by the appellant for his
prosecution had to prove that he had knowledge
of existence of such documents.
That according to the case of Dawkins Vs State 313 Md
20 1988, an individual would not be deemed to exercise dominion and
control over an object he is unaware of. Knowledge of presence of an
object is normally a prerequisite for exercising dominion and control.
Whereas the handwriting expert was required to examine various signature specimens, he demonstrated that he
came to his
25 conclusion by use
of a magnified laboratory printout.
It was thus wrong for the trial
judge to find that
the signature on exhibit P.3 was
a forgery. He argued that the said documents were not in the
house and as such, the
basing on documents he was not aware of.
to the offence of abuse of office,
the trial Judge based the
conviction on the
already submitted, the appellant contends
that the said
documents were not in Nanfuka's home and as such, the appellant did not
do any act prejudicial to
The appellant submitted in regard to sentence that the trial
Judge failed to consider the appellant's remand period while
sentence. That the award of fines would have been sufficient instead of a custodial sentence.
of the respondent
In reply, the respondent submitted that grounds
1, 2, 3, 4 and 5 have one cross cutting issue for this court to
determine which is whether the appellant was properly convicted of the offences of forgery
and abuse of office.
offence of abuse of office,
submitted that the first
ingredient was not disputed as
the appellant was employed in the office
of the Prime
Principal Accountant. That the appellant's claim that exhibits P3, PS (a-f), P10 and P11 were planted at the home
of Nafuka Teopista by
police was made in bad faith.
That there was credible evidence showing that the appellant willingly kept sensitive OPM documents bearing
forged signature of PW9 in the
private residence of his mother. From the evidence of PW1, PW2, PW3, PW4, PWS and PW6, all
of Office of the
Minister, it was asserted that exhibits P3, PS(a-f) and P10
documents used in OPM to pay and transfer huge amounts of public and donor
Treasury General Accounts and Crisis Management Project Accounts.
The evidence on record showed that the only two signatories to
the security papers and cash withdrawal forms are the appellant and
25 PW9. Further, that
pointing to the appellant as the only person keeping security papers and cash withdrawal forms in a safe in his office was never
challenged. PW8, the
Local Council (LC) Defense secretary and neighbor to the appellant led PW12, PW13 and
PW14 to the appellant's home in Bukoto to carry
out a search.
30 PW10, a brother to the
appellant confirms that a search was
conducted in his mother's house
and was carried out in his presence at the room which was locked but broken into by PW7. A laptop and
documents were recovered from there and this evidence corroborated
the evidence of PW12 and PW13 who conducted a search.
That the photographic evidence
additional corroboration since the photos were admitted in evidence unchallenged.
In regard to the
offence of forgery, the respondent submitted that the trial Judge rightly evaluated the evidence on record and convicted the
s appellant accordingly. The said
documents with the
signatures of PW9 were submitted
PWll and a
report was accordingly submitted confirming that the said signature
was a forgery.
This was corroborated by
the evidence of
PW9 who testified that he never signed the questioned document.
1o On grounds 6
and 7, the respondent submitted in reply to the appellant's argument that the trial
wrongly convicted the appellant of
the offence of making documents without authority
on the same facts as those of forgery, that there was
contradiction regarding the appellant's
15 document in question was forged and was made with
intention to defraud and having
been recovered from
the appellant was held responsible.
In regard to
allegation of double punishment, the respondent
argues that the offences with
20 convicted of are distinct offences as per the indictment. The elements
in each of the offences are different and these offences are not
minor and cognate but distinct. Further,
that any offence,
whether a felony or misdemeanor may be charged together
in the same indictment
if the offences charged
are founded on
the same facts or form part of a
25 series of offences of the same or
similar character and each offence
is set out in separate counts
as was the case herein.
that the sentence imposed by
the trial Judge was lawful and lenient enough considering the circumstances of the offence. That the
the mitigating factors but the
30 aggravating factors
outweighed the mitigating factors. The trial Judge
considered the period spent on
imposing the highest sentence of 5 years and the lowest sentence of 2 years.
Resolution of the appeal
This is a first appeal and this court takes cognizance of the established
principles regarding the role of a frrst appellate court. The cases of Kifamunte
Henry v Uganda Supreme
s Appeal No. 10 of 1997 and Pandya v. R (1957] EA 336, and Bogere
Moses and Another
v. Uganda, Supreme
Court Criminal Appeal No. 1 of 1997 in essence have established that a frrst appellate court must reviewf rehear the evidence and consider all
which were before the trial
come to its own
10 regarding the facts, taking into
account that it
neither seen nor heard the witnesses; and
in this regard, it
should be guided by the observations of the trial court regarding
demeanour of witnesses.
Rule 30 of the
Judicature (Court of Appeal Rules) Directions SI
13-10 is also relevant. It provides that;
15 "30. Power to reappraise evidence and to take additional evidence
from a decision
of the High Court acting
the exercise of
its original jurisdiction, the court may-
(a) Re-appraise the evidence and draw inferences of fact; and
(b) In its discretion,
for sufficient reason, take additional evidence
20 or direct that additional evidence be taken by the trial court or by a
We have borne the above principles in mind in resolving this appeal.
We consider that the
evidence in regard to the offences with which the appellant
25 convicted as laid out in the memorandum of
Abuse of Office
The offence of
of office is provided
for under Section 11 (1) and
(2) of the Anti-Corruption Act and provides that;
30 "11. Abuse of office.
(1) A person who, being employed in a public body or a company in
which the Government has shares,
does or directs
to be done an arbitrary act prejudicial to the interests
of his or her employer or of any other person, in abuse of the authority of his or her office, commits an
5 offence and is liable on conviction to a term of imprisonment not exceeding seven years or a fine not exceeding
one hundred and sixty eight currency points
(2) where a person is convicted of an offence under subsection
(1) and the act constituting the offence was done for the purposes
of gain, the
10 court shall, in addition to any other penalty it may impose,
order that anything received as a consequence of the act, be forfeited to the Government."
The ingredients for the offence of abuse of office are;
(a) The appellant at the time of the
15 offence, was employed
by a public
body or company in which the government has shares.
(b) The appellant does
directs to be done an
arbitrary act prejudicial to the interests of
his or her employer
or of any other
20 (c) The act was done in abuse of authority.
On the 1st ingredient, it is not a disputed fact that the
appellant was, at the time the offence was committed, employed by the Uganda government as a Principal Accountant in
Office of the
25 A search was
carried out on the 22nd of July 2012 at the appellant's mother's
a number of items were, according to the prosecution case, found in one of the rooms. This was testified to by a number of prosecution witnesses
including PW7, a carpenter, who testified that
on the said date, he was approached by
PW8 to open a
30 certain locked door in the
presence of policemen who had come to
area Local Council
secretary, also testified that he was asked by
witness a search they intended to carry out
at the home
of the appellant. The
search led them to a locked door
house and the police recovered a laptop
and a number of documents. PW10, a biological brother
to the appellant, testified
that the police
searched the house in his presence and stated
that one of the rooms was
5 locked and a carpenter was brought to open the
opening the door, a laptop was found together with some documents after
he signed on the search certificate. PW14 testified that
he took photos of some of the documents and some
parts of the
the search and they were exhibited as Exhibit P.15.
10 Regarding the recovered documents,
that they were planted at the home of Nanfuka Teopista.
The prosecution led evidence of various witnesses that witnessed the search. PW8 was the LC1 Defense secretary
and neighbor to the appellant who
led PW12, PW13
and PW14 to the
and witnessed the
15 search. PW10, a brother
to the appellant also
testified that a search was carried out in his presence and his mother, Teopista Nanfuka, told
to take the policemen around
the house. He
testified that a laptop and documents
were recovered from the room.
PW10 however testified aten page 297 of the record
the search team came,
20 they had bags and envelops with them.
PW12 was the police
officer who led the investigation and he
decision to have the room broken into. Thereafter, PW7 was called by PW8 to break into the said
search. PW8 testified on page
225 that when the room was broken into, there was
25 a drawer and one big blue bag from
removed some documents and a laptop.
to the search certificate exhibited
as P-8, the recovered
withdraw forms had both
signatures of the appellant and that of one
Pius Bigirimana. However, the cash withdraw forms tendered
30 in evidence only
had the signature of
Pius Bigirimana who testified
as PW9. In addition, there was photographic evidence tendered in court by PW14, a scene of crime officer. The appellant contends that
PW14 did not participate in
search because he did not sign
on the search certificate.
The photographs exhibited
did not show what
35 was mentioned in
the search certificate. There were no photographs of the said
recovered documents in the drawers of the room.
PW14 simply took photographs of the documents displayed on the bed.
The appellant contends
that he was employed
by the G vern et of
a as Principal Accountant in the Office
of the Pnme M1n1ster s between July 2007 and
July 2012. His health deteriorated and as
such was granted sick leave from 2nd June 2012 to 9th July 2012.
search was carried out
on 22nd July 2012. The prosecution contends that the appellant was grar1ted sick leave
4th June to
2012, which was only 4 days off.
The basis of the
10 was that the appellar1t kept sensitive documents of the Office of the
Prime Minister bearing a forged signature of PW9. In addition were documents used in Office of the Prime Minister to transfer huge amounts
of public and donor funds from
Treasury General Account
and crisis management project accounts and this was testified to by
15 P\Vl, PW3, PW4, PWS and PW9.
PWl and PW4 testified
the signatories to the account at OPM are the Principal Accountarit and the Permarient Secretary.
That security papers are supplied from Bank of Uganda
arid each account
own set of security papers serially numbered and are
20 by Bank of Uganda on request. Once the Permanent Secretary
has approved a requisition, it comes back to the
who would direct
payment to the person handling the particular
account. PWS stated that cash withdraw forms replaced cheque books and he used
to fill in payment instructions on a security paper
25 upon direction from the appellant after
would hand the filled paper back to the appellant.
PWIO testified that
the search team came into their home with a bag arid envelops. The appellant argued that the said documents were planted in the room.
PWB was the LC Defense
secretary who was
30 requested by the
to be part
of the search at the
home of th appellant. PW8 did not specifically
items listed on the search certificate during cross examination. The testimony of PW1
on page 3,23 of the record was that
search team entered
Lubuu1was room, they had
their bags but
he did not
35 content of the bags.
The question for this court to determine is whether all the documents
in the search certificate were recovered from Busuulwa's room.
As already noted above, the search was
carried out at the home of the appellant
which included the
small house occupied by the
5 appellant's children, the house occupied
by the appellant's wife, one occupied
by the appellant which was also, according to the testimony
of PW12, under
the one occupied by Teopista
appellant's mother, in which the said documents were recovered from
one Lubuulwa's room.
The police officers
10 the search together with
PW8, the LCl secretary, PW7, a carpenter
into the room, PW14, a police officer who took
the photographs of the searched room.
A search is defined in Justice Benjamin Odoki's
'A guide to criminal procedure in Uganda' as an inspection made
on a person
or in a
15 building for the purpose of
ascertaining whether anything
useful in criminal investigation maybe discovered on the body of the person or
in a building searched. According to him, the occupant of the
shall be permitted to attend the search. In addition, Section 27 of the Police Act Cap 303
20 (((6) The occupant of the place searched, or some other person
in his or her behalf, shall,
in every instance, be permitted to attend during the search; and where possible
a local leader
present during the search.
(7)Notwithstanding the provisions of this section or the provisions
25 of the Magistrates Courts Act relating
to the search of premises, no police officer shall search any premises unless he or she is in possession of a search warrant
issued under the provisions of the Magistrates Courts Act or is carrying a warrant
card in such form as shall be prescribed by the inspector
30 A police officer
may search the dwelling or place
of business of the person so arrested or
of the person for whom the warrant of
arrest has been
may take possession of
anything which might
reasonably be used as evidence in any criminal proceedings. See section 69 of the Magistrates Courts Act Cap16.
From the above provtstons relating
to searches, there must be a search warrant for a search to be carried out.
When the search team according to the testimony of
PW12 who led
the search team, they arrived at the home of Teopista Nanfuka, the
5 appellant's mother, and found was around but for health reasons, she told PW10 to take them around. PW10 testified on page 323 of the record that;
came to the place they
had the bags
envelops. When they entered Lubuulwa's room they had
their bags. I do
1o not know what
in their bags.'
It was also PWlO's testimony that
the search team entered the room
and came out with a laptop and documents relating to Peter
Lubuulwa and their bags. He was then told to sign on the search certificate which was
He testified that;
15 ai signed this document. Kazinda
was not around. There are other three sheets attached. I did not sign on them. These
were not attached
at the time I signed.
There is PTO at the end of the
second page, none on the 3'd page
on the 4th page. But there
is no other
20 The 2nd, 3rd and 4th pages
are not initiated by us.
I only saw a
laptop. I do not know any of these other things written here. They did not introduce themselves.
They did not
show us a search
warrant or anything. Mr. Kazinda
was brought after the search
2s The evidence on record shows
that a search
was carried out without
warrant and certain documents were allegedly recovered from the
Lubuulwa's room. PW10 took
search team around but did not enter the room when it was opened.
He just saw the officers
coming out with
the alleged recovered
documents. PW14 is the police
30 officer who took photos of the recovered. documents. The
show any of the documents in exhibit P. 8.
search certificate included a laptop having been recovered from the room during the
search however no such laptop was photographed by
to his evidence on
page 460 of the record.
PW14 testified during
cross-examination that he did not take photographs of the recovered documents while in the shelf from which they were allegedly recovered.
Exhibit P.3 and
cash withdraw authorization forms
s photographed. The photographs
selective of the search
process. PW14's testimony was that photograph P
was a close
range shoot exposing
some of the recovered documents
Kazinda's house. It included
a personal letter to the appellant.
The learned trial Judge held that;
((Furthermore, the letter to the accused
possession of the accused. This letter
played a major role showing ownership and therefore dominion and control from this which court can safely find that the accused was in constructive possession of the documents found in his mother's house."
15 This finding was, in our view, an error on the part of the
learned trial Judge. Photograph P included the
personal letter to the appellant, however, it was the testimony of PW14 that photograph P was a close range shoot
of documents recovered from
Kazinda's house not Teopista Nanfuka's house. Exhibits P3,
PS (a-f), PlO and Pll from
20 which the charge against the appellant was founded were allegedly recovered from Teopista Nanfuka's house
and not the appellant's
This in essence means
the photograph of the personal letter was not of Lubuulwa's room.
We must note that photograph P
was not included on the search
25 certificate. The prosecution evidence
contradictions that cannot
be ignored in proving the
offence of abuse of office.
is that exhibits P.3, P5 (a-f), PlO and Pll were not recovered from Lubuulwa's
room as was
appellant alleges that the said documents were
30 by the
search team which allegation we cannot rule out considering the evidence
PW10 who testified that
documents and a bag with them when they entered
room. We find that the prosecution did not
documents were in constructive possess10n of the nppellnnt.
14'urthcr, the learned trial Judge
held that the appellant's act of k cping such important documents
away from office and away from
home amounted to hiding the
come looking for them.
On the record is a letter from the Permanent Secretary, Pius Bigirin1ana, to the Inspector General of Police requesting action to be token against the appellant and reporting his disappearance
10 office after he had been transferred. There is a letter on record
marked 21 (v) from PW9 addressed to the appellant about his prolonged absence from duty.
4.0 of the letter was about
redeployment and PW9 advised the appellant to prepare the final accounts by 31st July 2012 and handover office not
15 later than 30th August 2012. The search was carried out
on 22nd July
2012 before the expiry of the deadline for handover. DEXH 10 showed that the appellant had to handover on 31st August 2012 and DEXH
11 shows that there was already a Principal Accountant on duty before the handover of the appellant.
The appellant testified
478 of the record that;
((When I reported to police I found the under secretary, my supervisor then she told me how will I supervise two principal
accountants? The letter
saying in paragraph 4 he had put a padlock on my office door, he indicated clearly that he had put
25 surveillance around and this is the situation I found. I said now
there is another challenge an accountant does not hand over a room an accountant hands over accounts, paper reconciliations,
statements and now if I am not on the IFMS what will I handover
as a professional because at that duty station your role is gone
30 you are cut off, 2. You are not a signatory to Bank of Ugandall
those accounts if you call Bank of Uganda you are unrecogmzed
so I said what am I going to handover..."
According to the evidence
on record, it is clear that the appellant's
handover deadline was still running at the
time he was arrested and
as such, it cannot be said that he absconded from duty.. He was also blocked from his office and as such could
not handover office as an accountant.
Further, Public Service Standing Order
(A-n) 19 states that;
5 ((in absence of any communication from the officer
within 30 days, the officer shall be deemed to have abandoned duty"
He could only be deemed
to have absconded after 8th August 2012 which is 30 days after 9th July when his leave
to have expired.
We do not find that the
offence of abuse of office was
In the Supreme Court of Appeal of South Africa case ofDPP VS Oscar
Leonard Carl Pistorious Case
No. 96 of 2015, it was held that;
test is that
an accused is bound
to be convicted
evidence establishes his [her} guilt beyond reasonable doubt,
15 logical corollary is that he [she} must be acquitted if it is reasonably possible that he [she} might be innocent. The process of reasoning
which is appropriate to the application of that test in any particular case will depend on the nature
of the conclusion which the court has before it..."
20 The decision in Justine Nankya v. Uganda SCCR Appeal No. 24 of 1995 (Unreported) citing with
Okoth Okale v. R. (1955) E.A. 555 emphasizes among others that an accused has no obligation
to prove his
innocence. Even where he or she opts
to keep quiet
throughout the trial or offers
a very incredible defence, he
25 or she can only be convicted
strength of the prosecution case against
him or her.
means that before an accused is convicted the trial
to see to it
proved its case to the required standard.
We thus find that the trial
Judge erred in finding that the offence of
30 Abuse of Office was proved.
Grounds 1, 2, 3 and
5 therefore succeed.
of forgery is provided
for under Sections
342 and 347 of the Penal Code Act;
s Forgery is the making of a false document with intent to defraud or to deceive.
347. General punishment for forgery.
any document commits an offence which, unless otherwise stated, is a felony
and is liable, unless
owing to the
10 circumstances of the forgery or the nature of the thing
other punishment is provided, to imprisonment for three years.''
of forgery, the prosecution must
of a false document
15 (b) The intention to defraud or deceive
The prosecution relied on the handwriting expert report which was exhibited P.ll. The handwriting expert was required to examine and compare specimen signatures 81-85 against Ql, 02, Q3, QS, Q6, Q7, Q9, QlO, Q13, Ql4, QIS and Q17-Q20, Q22-24,
20 and Q52-Q53. According to PWll 's report, he found
were fundamental differences between the Q8 and 8s.
He found that there are several differences between
questioned signatures attributed to
the Permanent Secretary in
exhibits Ql, 02, Q3,
QS, Q6, Q7, Q9, QlO, Ql3, Q14, QlS and Q17-Q20, Q22-24, Q27-Q34, Q41-Q49
25 Q52-Q53 and the
specimen signatures provided in Sl-SS.
The appellant contends that the finding of PW11 should have been made with the exception of Q10
whose description was for exhibit P3. PW9 testified that he never signed the questioned document.
PW11 explained that the error in the interchanged specimen
30 811-812 was corrected on record. He examined specimen signatures
811-812 of the appellant against the questioned documents.
The .. ,'
respondent argues that the correction did not
any miscarriage of justice since the chain of exhibits
was not broken.
Section 43 of the Evidence Act provides that;
((When Court has to form an opinion as to the identity
5 or finger
impressions, the opinions upon that
point of persons
specially skilled in questions
to the identity
of handwriting or finger impressions are relevant
facts. Such persons
are called experts."
The principles of dealing
with a handwriting
laid down in the case of Kimani vs Republic (2000)E.A 417, where it was
10 held as follows: " .......it is now
to the opinion of expert, such opinions are
not as it were,
binding on the courts.....such evidence must be considered along with all other available
evidence and if a proper and cogent basis for rejecting the expert
opinion would be perfectly
15 entitled to do so.........."
a case was based purely on circumstantial
evidence considering the fact that there
was no eye witness to the signing of the
forged documents. As already noted above, the search team came
into the home of Nanfuka
Teopista with a bag and some documents
20 in an
envelope. To prove forgery,
the prosecution has to prove that the appellant made the false documents with intention to
defraud. We cannot ignore the appellant's contention that the alleged
documents were planted in the room in Nanfuka's house. The
photographic evidence relied on by the respondent was selective as it
25 did not capture all the movements right from outside the room to immediately
after the room was
to show that the documents were actually in the room when the search team entered.
PWIO, who was part of the search team from the start, incredibly could not identify
the exact documents that
30 Busuulwa's room.
We note that the case of Simon Musoke
Vs R (1958] EA 715:- held that;
"in a case depending exclusively or partially upon circumstantial
evidence, the Court must before deciding
upon a conviction find that,
the inculpatory facts are incompatible with the innocence of the
incapable of explanation upon any reasonable
5 hypothesis than that of guilt."
See also Teper v. R. (2) AC 480
before drawing the inference of the accused's guilt from the circumstantial evidence
to be sure that there are no other co existing circumstances which would weaken or destroy the inference."
10 While Taylor
Evidence (11th Edn.)
74 states "the circumstances
to the exclusion of every reasonable doubt."
It is the appellant's case that the said documents
were planted in
room by some members
15 handwriting expert's
report showed that there
differences between the QS and
He found that there are several
signatures attributed to the Permanent Secretary
in exhibits Ql, 02, Q3, QS, Q6, Q7, Q9, QlO, Ql3, Ql4, Q15 and Q17-Q20, Q22-24, Q27-Q34, Q41-Q49 and Q52-
20 Q53 and the specimen signatures provided in Sl-85. However, QlO was not among the documents
in which the sighted defects manifested. PWll, the handwriting expert, included
report that it was
forged. This error placed doubt on PW11's evidence
and as such, the prosecution failed to
prove that the
25 appellant committed
the said forgery.
Ground 4 succeeds accordingly.
Making a document without authority
Section 355 of the
Penal Code Act provides
for the offence of making
30 a document without
authority and it provides that;
"355. Making documents
Any person who, with intent to defraud or to deceive-