Atai v Uganda (Criminal Application 19 of 2020) [2021] UGSC 4 (28 September 2021)

# **REPUBLIC OF UGANDA**

# IN THE SUPREME COURT OF UGANDA

## AT KAMPALA

## **CRIMINAL APPLICATION NO. 19 OF 2020**

## CORAM: OPIO-AWERI; MWONDHA; TIBATEMWA-EKIRIKUBINZA; MUHANGUZI; CHIBITA; JJ. S. C

# ATAI HELLEN DOREEN :::::::::::::::::::::::::::::::::::

#### **VS**

# UGANDA :::::::::::::::::::::::::::::::::::

### **RULING OF THE COURT**

This is an application brought by Notice of Motion under Sec 4, 5(5), 6(1&2), 7 and 11 of the Judicature Act and Rules 2(1&2), 6(2)(b) 38(1)(a), 41, 42 and 43 of the (Supreme Court Rules) Directions, and Article 126(2)(e) and 132 of the Constitution; seeking the following Orders:

- 1. That the applicant be granted a Certificate to lodge a third appeal concerning a matter of law of great public and general importance to be considered by the Supreme Court - 2. That the applicant be released on bail pending the determination of the appeal pending before court. - 3. That a stay of execution and proceedings be granted against the implementation of the judgment/ruling/decree and orders of

the Court of Appeal delivered on 19<sup>th</sup> March, 2020 pending final disposal of the intended appeal.

4. Costs of the application be provided for

The application is accompanied by affidavits sworn by the applicant, Atai Hellen Doreen and Justin Semuyaba, her counsel.

The respondent objected to the application in an affidavit sworn by Brenda Kimbugwe Mawanda, Manager, Prosecutions in the Directorate of Legal Affairs, Directorate of Inspectorate of Government.

The background to the application is that on 13<sup>th</sup> July, 1993, the various offences charged with including applicant was embezzlement, causing financial loss, false accounting and abuse of office all under the Anti-Corruption Act, 2009 by the Magistrates Court attached to the Anti-Corruption Division sitting at Kololo.

She was convicted and sentenced to three and a half years' imprisonment and ordered to refund Shs 28,249,519/= to Amuria Local Government.

Being dissatisfied, she appealed to the High Court which quashed her conviction for embezzlement and causing financial loss but sustained the conviction for abuse of office.

She appealed to the Court of Appeal, which found no merit in the appeal and upheld the decision of the High Court. Being dissatisfied by the decision of the Court of Appeal, she applied for a Certificate of Importance in order to file a third appeal. The Court of Appeal denied her the Certificate hence the instant application.

The applicant applied to the Supreme Court for, and were granted, extension of time within which to file the instant application. The application is for a Certificate of Importance to enable the applicant file a third appeal to the Supreme Court.

### REPRESENTATION

The applicant was represented by Justin Semuyaba while the respondent was represented by Rogers Kinobe and Philip Munaba from the Inspectorate of Government. Both Counsel filed written submissions.

### **SUBMISSIONS**

Counsel for the applicant, in his submissions reiterated the grounds of the application contained in the Notice of Motion and the affidavit in support.

Briefly that the applicant intends to appeal against the sentences imposed upon the applicant for being harsh, excessive and unconscionable, omnibus and illegal.

He submitted that the sentences passed were without regard to the Constitutional Sentencing Guidelines for Courts of Judicature Directions, 2013.

Counsel enumerated other grounds of appeal that he would be filing, which we don't need to go into here since this is an application for a Certificate of Importance not an appeal.

However, in order to lodge the appeal in the Supreme Court, he further submitted, he is required to obtain a Certificate of Importance and apply for bail pending appeal otherwise the appeal would be rendered nugatory.

Counsel submitted that the application was brought without delay within a period of fourteen days. That the applicant wishes to appeal on important matters of great public and/or general importance which necessitate the grant of a Certificate of Importance

He referred court to Hermanus Phillipus Steyn vs. Giovanni Gnecchi-Ruscone Application No. 4 of 2010 SC of Kenya to

highlight the principles that should exist before a Certificate of Importance is granted.

The same case was cited with approval in **Sylvester Byaruhanga vs** Fr. Emmanuel Ruvugwaho and Yoweri Rudigira SCCA No. 228 of 2014. He also referred court to Charles Lwanga Masengere vs God Kabagambe and 2 others SCCA No. 080 of 2014; John Paul Baingana vs Uganda SCCA No. 76 of 2016

In reply, Counsel for the respondent objected to the application and stated that the applicant "was only clutching at straws and trying to conjure information which was not alluded to in the proceedings."

Counsel contended that for an application for a Certificate of Importance to succeed the applicant must prove that the matter raises a question of great public or general importance, which the applicant had not shown. Rather, the applicant raised points not grounded in law but facts and the issues raised were of personal rather than great or general public importance.

He also referred court to Hermanus Phillipus Steyn vs Giovanni Gnecchi-Ruscone (supra) to highlight what amounted to great or general public importance.

He further referred court to **Pati vs Funzi Island Development Ltd and 4 others** to augment his point.

In conclusion, he submitted that the applicant had no substantial question of general or public importance but was merely dissatisfied with the findings of the lower courts. He therefore asked court to find that the application had no merit and should be dismissed.

#### **CONSIDERATION**

$\tau \rightarrow \tau$

We have keenly and analytically considered the affidavits and other pleadings on record and evaluated all the available evidence.

The law applicable is section $6(2)$ of the Judicature Act, which provides as follows:

"Where an appeal emanates from a judgment or order of a Chief Magistrate or a Magistrate Grade 1 in the exercise of his or her original jurisdiction, but not including an interlocutory matter, a party aggrieved may lodge a third appeal to the Supreme Court on the Certificate of the Court of Appeal that the appeal concerns a matter of law of great public or general importance, if the Supreme Court considers, in its overall duty to see that justice is done, that the appeal should be heard."

Rule $2(2)$ of the Rules of this court provide as follows:

"Nothing in these rules shall be taken to limit or otherwise affect the inherent powers of the Court, and the Court of Appeal, to make such orders as may be necessary for achieving the ends of justice or to prevent abuse of the process of any such Court, and that power shall extend to setting aside judgments which have been proved null and void after they have been passed, and shall be exercised to prevent an abuse of the process of any court caused by delay"

Rule 3(b) of the rules this Court provides as follows: $\frac{1}{2}$

"appeal in relation to appeals to the court, includes an intended appeal."

Rule $39(1)(b)$ of the rules of this court provides as follows:

$\mathsf{S}$

"if the Court of Appeal refuses to grant a certificate as referred to in paragraph (a) of this sub rule, an application may be lodged by notice of motion in the court within fourteen days after the refusal to grant the certificate by the Court of Appeal for leave to appeal to the court on the ground that the intended appeal raises one or more matters of great public or general importance which would be proper for the court to review in order to see that justice is done."

The matters that deserve consideration under section $6(2)$ of the Judicature Act must be matters of law of great public or general importance, or if the Supreme Court considers, in its overall duty to see that justice is done, that the appeal should be heard.

Matters of law of great and general importance are not defined in the Act. However, case law, has attempted to define those terms over time.

In Kenva Plantation and Agricultural Workers Union vs Kenya Export Floriculture, Horticulture and Allied Workers Union (KEFHAU) {2018} KLR Civil Application No. Sup 5 of 2017, it was held, *inter alia*:

The principles to determine whether a matter was of general, public importance included:

- 1. For case to be certified as one involving a matter of general public importance, the intending Appellant had to satisfy the Court that the issue to be canvassed on appeal was one the determination of which transcended the circumstances of the particular case and had significant bearing on the public interest. - 2. Where a matter in respect of which certification was sought raised a point of law, the intending Appellant had to demonstrate that such a point was a substantial one, the

determination of which would have had a significant bearing on the public interest.

- 3. Questions of law had to have arisen in the Court or Courts below and had been the subject of judicial determination. - 4. Where the application for certification had been occasioned by a state of uncertainty in the law, arising from contradictory precedents, the Supreme Court could either resolve the uncertainty, as it could determine or refer the matter to the Court of Appeal for its determination - 5. Mere apprehension of miscarriage of justice, a matter most apt for resolution in the lower superior courts was not a proper basis for granting certification for an appeal to the Supreme Court. The matter to be certified for a final appeal in the Supreme Court had to still fall within the terms of article $163(4)(b)$ of the Constitution. - 6. The intending Applicant had an obligation to identify and concisely set out the specific elements of general public importance which he or she attributed to the matter for which certification was sought. - 7. Determination of facts in contests between parties were not, by themselves, a basis for granting certification for an appeal before the Supreme Court,"

This is a matter concerning embezzlement of public funds, abuse of office and other related offences. The matter went before the Magistrate at the specialized Anti-Corruption Court Division. The parties were heard and the evidence analyzed accordingly. The applicant was convicted and sentenced.

She appealed to the High Court, which heard the merits of her appeal and sustained the conviction on some of the offences and sentence. The Court of Appeal entertained the appeal and sustained the appeal and even enhanced some of the sentences.

$\overline{7}$

Matters of handling finances are highly personal and are between the person handling the finances and the public entity whose finances they are handling. When a disagreement between the two arises, they either agree to sort it out between themselves and their auditors, or, failing which, they resort to court.

The only way the matter can amount to one of great public or general importance is if public funds were embezzled or swindled and the culprits of perpetrators walked away scot free, or, attempted to do so.

However, where an individual is being held accountable for missing or mismanaged public funds, it would be stretching the definition of great public or general importance.

The applicant has not highlighted any areas of law that raise uncertainty that was not amply canvassed in the lower courts. Neither does she highlight any issue that transcends the circumstances of her particular case with a bearing on public interest.

Consequently, the applicant having failed to show that her matter is of great public or general importance as outlined in the precedents above, she cannot be granted a Certificate of Importance.

As a result, the application is disallowed and grant of a Certificate of Importance is hereby denied.

Dated at Kampala, this ....................................

Hon. Justice Ruby Opio Aweri JUSTICE OF THE SUPREME COURT

Thuer Que

Hon. Justice Faith Mwondha **JUSTICE OF THE SUPREME COURT**

L'isaknive.

Hon. Justice Prof. Lillian Tibatemwa-Ekirikubinza JUSTICE OF THE SUPREME COURT


Hon. Justice Ezekiel Muhanguzi JUSTICE OF THE SUPREME COURT

Hon. Justice Mike Chibita

JUSTICE OF THE SUPREME COURT

Dehumed by the Registran an<br>20th Dest 2021.