Njoki v Uganda (Criminal Appeal 93 of 2023) [2024] UGHCCRD 71 (18 December 2024)

**THE REPUBLIC OF UGANDA**

**IN THE HIGH COURT OF UGANDA HOLDEN AT KAMPALA**

**(CRIMINAL DIVISION)**

**CRIMINAL APPEAL NO. 093 OF 2023**

**(Arising from Buganda Road Court Criminal case No. 229 of 2022)**

**SOLOMON NJOKI::::::::::::::::::::::::::::::::::::::::::::::::::::::::APPELLANT**

**VERSUS**

**UGANDA:::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::RESPONDENT**

**JUDGMENT BY JUSTICE GADENYA PAUL WOLIMBWA**

1. **Introduction.**

This is an appeal against the judgment of HW Kyoshabire Caroline, Magistrate Grade I, sitting at Buganda Road Chief Magistrates Court. The Appeal is against conviction and sentence.

1. **Background.**

Briefly, Njoki Solomon, hereinafter called the Appellant and Kamala Dickson, hereinafter called A2, was charged with six counts of electronic fraud c/s 19 of the Computer Misuse Act, five counts of personation c/s 381(1) of the Penal Code Act; possession of suspected stolen property c/s 315(1) of the Penal Code Act; seven counts of Forgery c/s 342 and 347 of the Penal Code Act; two counts of uttering a forged document c/s 351 of the Penal Code Act.

The prosecution alleged that the Appellant, A2 and others at large created a fake Facebook account in the name of Jessica Alupo, the Vice President of Uganda and through this account, lured unsuspecting members of the public who needed help for various problems to give them money. Among the members of the public who were lured was Akoli Winfred, who was defrauded of UGX410,000; Celtine Amongin, who was defrauded of UGX 305,000; Atuhwere Derinah, who was defrauded of UGX 32,000; Robert Ntamba, who was defrauded of UGX 600,000; James Munyigwa, who was defrauded of UGX 1M; Edimu Francis, who was defrauded of UGX 2,110,000. The Appellant and A2 were also charged with personation -for falsely holding out to the people that they defrauded that they were the Vice President, whereas they were not.

In the investigation of the offences, the Appellant's home was searched, where a horde of forged receipts in the name of the Ministry of Internal Affairs was discovered. The search team also found a GPS tracker belonging to the Uganda Wildlife Authority, a forged identity card allegedly issued by UNEB in the Appellant's name, a forged identity card of Kawaala College School in the Appellant's name, and a forged identity card of Vienna High School in the Appellant's name.

The Appellant denied committing the offences. He said that around 2021, he lost a mobile handset to A2, who he suspects committed the offences. He says he reported the matter to the police, although he did not submit a report to the court. He denied being the owner of the MTN line on which the money that was fleeced from the complainants was sent. Concerning forging a national identity card and a UNEB identity card, he claimed that he lawfully got them. A2 accused the Appellant of committing some of the offences.

The Appellant and A2 were tried. A2 was acquitted of all the counts, while the Appellant was convicted on some counts and acquitted on others. The Appellant was sentenced as follows:

Count 5- 42 months’ imprisonment; count 6- 42 months’ imprisonment; count 11- 12 months’ imprisonment; count 13 – 12 months’ imprisonment; count 14, 24 months’ imprisonment; count 15- 12 months’ imprisonment; count 16 – 12 months’ imprisonment; count 18 – 24 months’ imprisonment; count 19- 24 months’ imprisonment; count 20- 24 months’ imprisonment; count 21 – 24 months’ imprisonment. The Trial Magistrate ordered that the sentences be served concurrently, including the time spent on remand.

**3.0 Grounds of Appeal.**

The Appellant was aggrieved with the decision and filed this appeal. The grounds of appeal as reformulated at the trial are:

1. The trial Magistrate erred in law and fact when she sentenced the appellant to 42 months without the option of a fine. 2. The trial Magistrate erred in law and fact by not calling Vice President Alupo Jessica to court, and yet she wrote the letter to the court. 3. The Trial Magistrate erred in law and fact by not giving the appellant time to prepare for his defence. 4. The Trial Magistrate erred in law and fact by not giving the appellant disclosure.

**4.0 Representation.**

The Appellant was unrepresented. Ms Apolot Joy Christine, a Senior State Attorney, represented the Respondent.

**5.0 Submissions of the Parties.**

**Submissions of the Appellant:**

**Ground 2: The Trial Magistrate erred in law and fact by not calling Vice President Alupo Jessica to court, and yet she wrote the letter to the court.**

The gist of this ground is that the Vice President, the complainant in the case against him for creating a Facebook account to fleece unsuspecting public members, was not called to testify, and her failure to testify was fatal to the prosecution’s case.

He submitted that in Stella Nyanzi vs Uganda, the appellant was set free because the First Lady, the complainant in the lower court, never testified. He relied on the case of Bukenya and Others vs. Uganda 1972 EA 549, where the court held that:

It is well established that the Director can decide who the material witnesses are and whom to call, but this needs to be qualified in three ways.

1. The director must call or make all witnesses available to establish the truth, even if their evidence is inconsistent. 2. The court has the right and duty to call any person whose evidence appears essential to the just decision of the case. 3. While the director is not required to call many witnesses, suppose they call barely adequate evidence, and it appears that other witnesses who were not named were available. In that case, the court is entitled, under the general law of evidence, to infer that the evidence of those witnesses, if called, would have tended to be detrimental to the prosecution.

He submitted that the Vice President's evidence was crucial to the charges against him, and failure to call her was sufficient grounds for his acquittal.

**Ground 1: The trial Magistrate erred in law and fact when she sentenced the appellant to 42 months without the option of a fine.**

The Appellant told the court that the law provides that where a fine is the first sentence for a particular offence, with imprisonment as a second option in default of paying a fine, the sentencing court should only apply a custodial sentence based on compelling reasons. He referred to the cases of Uganda vs. Abdul Sendawula, Criminal Revision No. 3 of 1993, and Gichochi Paul vs. Uganda, 2004 UGHCCRD 9.

He said that the penalty for breaching section 19 of the Computer Misuse Act is a fine not exceeding 360 points or imprisonment not exceeding fifteen years or both.

He said that the Trial Magistrate should have sentenced him to a fine, given the strong mitigation he put forward. For example, he was a first offender, he is productive to the country, he is sick, and his sickly parents are old and, therefore, need his help. He is also the primary caregiver to his son, who dropped out of school in P4.

In conclusion, he said he was wrongly convicted and should be acquitted.

**Ground 2(b): The Trial Magistrate erred in law when he convicted him of electronic fraud even though some ingredients had not been proven.**

The Appellant said that, whereas the prosecution stated that the money was sent to sim card No. 0785201344, which belonged to him, he did not have the phone as A2 had stolen it. He said he reported the theft to the police but was not allowed to call evidence from the police reference to confirm the report. He said he was given only one day to prepare and give his defence, which was hardly enough.

Secondly, he submitted that the SIM card was not registered in his name. Instead, it was registered using the particulars of Mugisha Sam, who testified in court that he did not know him. He said that this meant that the SIM card was unlawfully in operation. As indicated in PID No 4, it was self-registered via SMS code 197. This SIM card should have been deactivated, but UCC and MTN never did so and are responsible for its operation.

Furthermore, he said there was no evidence that he received the money allegedly sent to the Vice President using the SIM card. He said the Trial Magistrate relied on A2's evidence to convict him. A2 had been tortured to incriminate himself and had been promised to be freed if he incriminated himself.

About the Facebook account, the Appellant said that the account was on an Infinite phone. He noted that A2, who was using his phone, should be responsible for the offence. Lastly, the Appellant said that the Facebook account was not shown to the court, yet the phone was produced.

**Ground 3: The trial Magistrate erred in law when she failed to give the appellant adequate time and opportunity to prepare his defence.**

The court did not give the appellant adequate time to prepare his defence. He was asked to make his defence on the day the court ruled that the prosecution had made a prima facie case against him. He said this was inadequate time as he had been on remand for 17 months and 5 days. He said this contravened Article 28 (1) of the Constitution, which provides for the right to a fair trial.

He also said that he was unfairly remanded for a long time, yet Article 126 (2) (b) of the Constitution directs the court to do justice promptly. On the first day of his trial, the court told him that inquiries in his case were completed. He wonders why it took the prosecution 15 months to try him. In summary, he said that the prosecution violated his constitutional rights and, therefore, he should be acquitted.

**Ground 4: The trial Magistrate erred in law and fact when he judged him by ambush by not disclosing the evidence against him.**

He referred to articles 23 and 28(3)(b) of the Constitution, which provides that an accused person is entitled to a copy of the police file and evidence against him.

He accused the prosecution of trying without giving a copy of the police file. He accused the prosecution of not disclosing its case against him. As such, he was ambushed by witnesses he did not know. He asked me to declare the trial unlawful under section 11(2) of the Human Rights Act 2019. In conclusion, he prayed that he be acquitted and that if, in the alternative, I find him guilty, I should give him a more appropriate and lenient sentence.

**THE RESPONDENTS SUBMISSIONS.**

**The Trial Magistrate never erred in law by not calling the Vice President to testify.**

The Respondent argued that the failure to call the Vice President was not detrimental. The Senior State Attorney stated that under section 133 of the Evidence Act, multiple witnesses are not required to establish a fact. She asserted that the proof of a fact relies on the quality of the witnesses. She referred me to **Abdalla Nabulere and Others vs. Uganda (1979) HCB 77**. She maintained that the Prosecution had presented sufficient evidence to substantiate the case against the Appellant; thus, the failure to call the Vice President was not fatal.

**The trial Magistrate erred in law and fact when she sentenced the appellant to 42 months without the option of a fine.**

An Appellate court can only interfere with a sentence for the trial court to exercise its discretion during sentencing; the sentence is unjust or manifestly excessive; the trial court ignored an important matter or circumstance or where the sentence is wrong. See Kiwalabye Bernard v. Uganda SCCr. Appeal 143 of 2011.

The Trial Magistrate followed the law and the principle of proportionality in sentencing the appellant to—a custodial sentence of 42 months. She submitted that the sentence imposed on the Appellant by the Trial Magistrate was within the range of sentences provided for in section 162(1)(b) of the Magistrates Courts Act.

**The Trial Magistrate erred in law and fact by not giving the appellant time to prepare for his defence.**

The Respondent submitted that after the court ruled on the prima facie case, it explained the accused's rights. The Appellant was asked whether he was ready to defend himself and answered in the affirmative. She submitted that section 128 of the Magistrates Courts Act does not prohibit the court from immediately putting the accused on trial when a ruling of no case to answer is made.

In her view, the Trial Magistrate discharged her functions under section 128 of the Magistrates Courts Act when she explained to the Appellant his rights before putting him on his defence.

**The Trial magistrate erred in law and fact by not giving the appellant disclosure.**

The Respondent submitted that the Trial Magistrate did not violate articles 28(1)(3)(a)(c), (d) and (g) of the Constitution, which entitles an accused person to pretrial disclosure of all copies of material statements made to the police. She referred me to the case of **Soon Yeon Kong and Another V. Attorney General, Constitutional Reference No. 6 of 2007**- where the court stated that disclosure should be made before the trial commences depending on the justice of each case and on which document to be disclosed. A trial court may certainly insist on an explanation for a party’s failure to comply with the requirement to identify his or her witnesses in advance of a trial if that explanation reveals that the commission was willful, blatant and motivated by a desire to obtain a tactical advantage that would minimise the effectiveness of cross-examination and the ability to adduce rebuttal evidence, it would be entirely justified to exclude the witness’s testimony. US v. Nobles, 422 U. S 225 (1975).

She submitted that the prosecution, in this case, never thought of a tactical advantage by failing to disclose the prosecution’s case to the appellant. The Appellant never asked for disclosure of the prosecution case. In conclusion, the Respondent requested the court to dismiss the appeal.

**6.0 Duties of an Appellate Court.**

This is a first appeal. In **Kifamunte Henry v Uganda (Criminal Appeal No. 10 of 1997) [1998] UGSC 20 (15 May 1998)**, the Supreme Court guided that:

*The first appellate court has a duty to review the evidence of the case and to reconsider the materials before the trial judge. The appellate Court must then make up its own mind, not disregarding the judgment appealed from but carefully weighing and considering it. When the question arises as to which witness should be believed rather than another and that question turns on manner and demeanour, the appellate Court must be guided by the impressions made on the judge who saw the witnesses. However, there may be other circumstances quite apart from manner and demeanor, which may show whether a statement is credible or not which may warrant a court in differing from the Judge even on a question of fact turning on the credibility of witnesses which the appellate Court has not seen. See Pandya vs. R. (1957) E. A. 336 and Okeno vs. Republic (1972) E. A. 32 Charles B. Bitwire ys Uganda - Supreme Court Criminal Appeal No. 23 of 1985 at page 5.*

*Furthermore, even where a trial Court has erred, the appellate Court will interfere where the error has occasioned a miscarriage of justice: See S. 331(I) of the Criminal Procedure Act.’ It does not seem to us that except in the clearest of cases, we are required to reevaluate the evidence like is a first appellate Court save in Constitutional cases. On the second appeal, it is sufficient to decide whether the first appellate Court, on approaching its task, applied or failed to apply such principles: See P. R. Pandya vs. R. (1957) E. A. (supra) Kairu vs. Uganda (1978) FI. C. B. 123.*

In line with the Supreme Court’s decision above, I shall evaluate the evidence of the Trial Court, bearing in mind that I never had the chance to observe the demeanour of the witnesses.

**7.0 Consideration of the appeal.**

**THE TRIAL MAGISTRATE ERRED IN LAW WHEN SHE FAILED TO GIVE THE APPELLANT ADEQUATE TIME AND OPPORTUNITY TO PREPARE HIS DEFENCE.**

The essence of the appellant’s complaint is that the Trial Magistrate did not provide him with sufficient time to prepare his defence. He informed the court that he was immediately put to his defence after the court ruled that he had a case to answer. He said that he needed time to prepare and present his defence. In contrast, the Respondent asserted that the Appellant was afforded ample time to respond to all allegations against him. She stated that the Trial Magistrate, upon determining that the Appellant had a case to answer, complied with section 128 of the Magistrates' Courts Act by reading and explaining to him his rights.

The following provisions of the Magistrates Court Act are relevant to this ground of appeal.

Section 122(1) of the Magistrates Courts Act provides that:

*(1) Before or during the hearing of any case, the court may adjourn the hearing if sufficient cause is shown, on due application made in open court for the adjournment; but when the hearing of evidence has first begun the trial shall be continued from day-to-day until the trial is concluded, unless the court finds the adjournment of the trial beyond the following day to be necessary for reasons to be recorded.*

Section 128 of the Magistrates Court Act provides that:

1. *At the close of the evidence in support of the charge, if it appears to the court that a case is made out against the accused person sufficiently to require him or her to make a defence, the court shall again explain the substance of the charge to the accused, and shall inform him or her that he or she has the right to give evidence on oath from the witness box and that, if he or she does so, he or she will be liable to cross-examination, or to make a statement not on oath from the dock, and shall ask the accused whether he or she has any witnesses to examine or other evidence to adduce in his or her defence; and the court shall then hear the accused and his or her witnesses and other evidence.* 2. *In any case where there is more than one accused person, the court may either hear each accused person and his or her witnesses, if any, in turn or may, if it appears more convenient, hear all the accused persons and then hear all their witnesses.* 3. *If the accused person states that he or she has witnesses to call but that they are not present in court, and the court is satisfied that the absence of those witnesses is not due to any fault or neglect of the accused person, and that there is a likelihood that they could, if present, give material evidence on behalf of the accused person, the court may adjourn the trial and issue process, or take other steps, to compel the attendance of those witnesses.*

Section 128(1) of the Magistrates Courts Act places an obligation on the Magistrate after the court has found that the accused person has a case to answer to do the following:

1. Explain the substance of the charge to the accused person. 2. Explain to the accused person the modes of defending themselves. 3. Find out if the accused person has witnesses to call. 4. Establish from the accused person whether they need time to prepare their defence or whether they have witnesses to call in support of their defence.

However, section 128 of the Magistrates Court Act must be read in the context of articles 28 (1), (2) and (3) of the Constitution, which provides for the right to a fair trial. The Article reads as follows:

*(1) In the determination of civil rights and obligations or any criminal charge, a person shall be entitled to a fair, speedy and public hearing before an independent and impartial court or tribunal established by law.*

*(2) Nothing in clause (1) of this article shall prevent the court or tribunal from excluding the press or the public from all or any proceedings before it for reasons of morality, public order or national security, as may be necessary in a free and democratic society.*

*(3) Every person who is charged with a criminal offence shall—*

*(a)be presumed to be innocent until proved guilty or until that person has pleaded guilty;*

*(b)be informed immediately, in a language that the person understands, of the nature of the offence;*

*(c)be given adequate time and facilities for the preparation of his or her defence;*

*(d)be permitted to appear before the court in person or, at that person’s own expense, by a lawyer of his or her choice;*

*(e)in the case of any offence which carries a sentence of death or imprisonment for life, be entitled to legal representation at the expense of the State;*

*(f)be afforded, without payment by that person, the assistance of an interpreter if that person cannot understand the language used at the trial;*

*(g)be afforded facilities to examine witnesses and to obtain the attendance of other witnesses before the court.*

Article 44(c) of the Constitution says the right to a fair trial is none derogable.

In The Managing Director NSSF and 196 Others v. [2022] UGCA 223(8 August 2022), Justice Chebrorion said that:

*the right to a fair trial involves the right to present evidence, to cross-examine witnesses and to have findings supported by evidence.*

In Rebecca Nagidde v. Charles Steven Mwasa CACA No. 160 of 2018, Justice Egonda Ntende, whom Justice Chebrorion quoted in the previous case, observed that:

*Courts of law or any other bodies charged with the duty of adjudicating upon disputes between parties should act fairly, in good faith and without bias to give each party the opportunity to adequately state their case correctly or contradict any relevant testimony prejudicial to their case.*

Thus, the right to a fair trial entails, inter alia, the speedy conduct of the trial, equality of arms between the prosecution and defence, and the right of each party—prosecution and defence—to prepare and present its case before an independent and impartial court.

Therefore, while Sections 122(1) and 128 of the Magistrates Courts Act are couched in language that mandates the continuous hearing of a case from the prosecution to the defence, the court, in exercising its overriding duty to ensure timely and fair justice, must give the defence with adequate time to prepare its case. This includes, among other things, guaranteeing the accused’s right to participate meaningfully in the trial throughout the entire hearing and enabling the defence to prepare its case. Where necessary and for a justifiable cause, the defence should be granted an adjournment to secure its witnesses and present its case. In determining whether the defence requires more time, the court must consider the complexity of the trial, the volume of evidence on the record, the number of parties involved, whether the accused is represented and how long the trial has lasted. The court may also examine how the defence conducted the case during the prosecution hearing. Where the defence has conducted the case relatively easily, such an accused person may not require much time to prepare their case.

The record in this matter shows that the Appellant was put on his defence on 22nd May 2023. The record of proceedings reads as follows:

*Court: rights of the accused person explained to them.*

*A1: I will take an oath.*

*A2: I will take an oath.*

*A1: I am ready to proceed.*

*A2: I am ready to proceed.*

Shortly after this, the Appellant was put on the stand to testify. He gave detailed testimony touching on all the charges against him. The Appellant did not at any one time request the court to adjourn his case to enable him to prepare his defence. He also did not ask the court for time to call witnesses. He had none to call, and indeed, none were named.

Furthermore, the record of proceedings throughout the trial shows the active and knowledgeable participation of the Appellant in the trial that lasted well over sixteen months. During this time, the Appellant had sufficient time to marshal his defence. The Appellant conducted a detailed and well-informed cross-examination of the 12 prosecution witnesses against him. The Appellant was, therefore, ready and prepared to give his defence when he was put on the stand. The Appellant’s right to a fair trial was not compromised at all. In the result, I find the accusations of the Appellant are without merit. This ground of appeal is dismissed.

**THE TRIAL MAGISTRATE ERRED IN LAW AND FACT WHEN HE JUDGED HIM BY AMBUSH BY NOT DISCLOSING THE EVIDENCE AGAINST HIM.**

The Appellant complained that the prosecution did not disclose its case to him before the trial commenced. The Respondent admitted that it did not disclose the prosecution to the appellant but hastened to add that the prosecutor did not deliberately refuse to do so. The Respondent argued that there was no evidence that the prosecutor had a tactical advantage in failing to disclose its case to the prosecution.

The issue is whether the prosecution failed to disclose its case to the defence and, if so, whether this is fatal to its case. The Court of Appeal dealt with this matter. In **Bongomin v Uganda (Criminal Appeal Number 096 of 2011) [2014] UGCA 45 (10 September 2014).** The Court said:

*On ground 6 of the appeal, the appellant contended that his right to a fair trial was violated when the prosecution failed to provide him with or disclose the documentary evidence it intended to use against him at the trial.*

*We note that the respondent did not make any substantive reply to this ground in their submissions before us.*

*Be that as it may, the undisputed fact is that the appellant applied before grade one Magistrate Pader for an order directing the prosecution to avail to him copies of statement of documentary exhibits and any audit reports which the prosecution intended to use against him at the trial.*

*The court granted the order sought by the appellant on 06-06 2008. The prosecution was not satisfied with the Magistrate's decision and appealed to the High Court in Gulu.*

*On 26-02-2010 Hon. Justice Remmy Kasule (J) (as he then was) dismissed the appeal and upheld the decision of the Magistrate Grade one. The above notwithstanding the prosecution refused or failed to comply with the said court order and proceed with the trial before the Chief magistrate at the Anti-corruption court as if that order of court affirmed by the High Court had never been made.*

*The question of pre-trial disclosure was settled by the constitutional court in****Constitutional Reference No. 6 of 2007******Soon Yeon Kong Kim and Kwanga Mao versus Attorney General****(unreported)*

*In its unanimous decision the Constitutional court held as follows at pages 12-13 of its Ruling;*

***We have******stated here above that Article 28(1) and (3) require an accused person charged with any criminal offence to be presumed innocent and to be afforded all material statements and exhibits to enable him or her prepare him or her prepare his or her defence without any impediment. This is pre-trial******disclosure. This disclosure is not limited to reasonable information only. Counsel for both parties have agreed that the right to disclosure is not absolute. We respectfully accept that view. Both the Kenyan case of Juma (Supra) and the South African case of Shabalala (supra) support this view. Such a disclosure is subject to some limitations to be established by evidence by the State on grounds of State secrets, protection of witnesses from intimidation, protection of the identity of informers from disclosure or that due to the simplicity of the case, disclosure is not justified for purposes of a fair trial. This means that an accused person is prima facie entitled to disclosure but the 'prosecution may by evidence justify denial on any of the above grounds. It's the trial court that has discretion whether the denial has been established or not.”***

*In this particular appeal before us the trial court made an order directing the prosecution to disclose the information requested for. The prosecution either failed or refused to comply with the said court order.*

*In the****Soon Yeon Kong Kim case (Supra),*** *the Constitutional Court held further as follows at pages 13-14 of its Ruling;*

*“****In summary, Article 28(1)(3)(a)(c)(d) arid (g) of the Constitution of Uganda in their plain, natural and practical meaning, prima facie entitle an accused person in a Magistrate's Court to disclosure of: -***

1. ***Copies of statements made to Police by would be witnesses for the prosecution.*** 2. ***Copies of documentary exhibits, which the prosecution is to produce at the***

***trial.***

***(c) The disclosure is subject to limitations to be established through evidence***

***by the prosecution.”***

*We agree with the above unanimous decision of the Constitutional Court.*

The above decision of the Constitutional Court clarifies the prosecution's duty to disclose its case to the defence during pretrial proceedings. However, disclosure is contingent upon a request from the defence, as a blanket order to disclose would impose significant costs and time burdens on the prosecution. Furthermore, not all materials and information in the prosecution's possession are subject to disclosure. Some information may not be disclosed under exceptions to the disclosure rules. These exceptions include state secrets, protection of witnesses and the protection of informants. Also, Uganda is still developing disclosure rules, so we have to work with available precedents.

In this case, the appellant did not request the prosecution to disclose its case to him, unlike in the Bongomin case. In **Bongomin’s case** (supra), the prosecution declined to disclose its case to the accused after he had requested it and even after the court had ordered disclosure. It wasn’t unsurprising when the Constitutional Court ruled that the prosecution's actions violated the accused’s right to a fair trial as enshrined in Article 28 of the Constitution. The significance of this decision is that failure by the prosecution to disclose its case to the defence when asked violates the right to a fair trial. However, this decision is inapplicable to this case, as the defence did not request disclosure. Even if disclosure were automatic, a mistrial should only be ordered if the defence proves it suffered a miscarriage of justice, which is not the case in this trial. In conclusion, there is no merit in this ground of appeal.

**FAILURE TO CALL THE VICE PRESIDENT**.

Although this ground was premised on the Vice President's non-appearance, the appellant raised additional issues regarding whether his conviction for electronic fraud was proper. Therefore, I will address the twin issues by determining the propriety of the charges and the effect of the Vice President's non-appearance.

Section 19 of the Computer Misuse Act provides as follows:

*(1) A person who carries out electronic fraud commits an offence and is liable on conviction to a fine not exceeding three hundred and sixty currency points or imprisonment not exceeding fifteen years or both.*

*(2) For the purposes of this section, “electronic fraud” means deception, deliberately performed with the intention of securing an unfair or unlawful gain where part of a communication is sent through a computer network or any other communication and another part through the action of the victim of the offence or the action is performed through a computer network or both.*

**The ingredients of the offence of electronic fraud are:**

1. There must be deception. 2. The intention must be to secure an unfair or unlawful gain to gain something of value (money or personal information from a victim without their knowledge or consent. 3. The communication must either fully or partially be sent through a computer network or any other communication or part. 4. It must be sent through the actions of the victim of the offence or the action is performed through a computer network or both. 5. The accused person must be responsible.

Electronic fraud involves using technology, deception, and exploiting the victim’s trust. The victim must rely on the false representation. By its nature, fraud consists of misrepresentation, prejudice or potential prejudice, unlawfulness, and an intention to defraud.

The Appellant was charged with electronic fraud contrary to Section 19 of the Computer Misuse Act. The prosecution alleged that the Appellant and others, between January 2021 and January 2022 in Kizungu Zone, Kasese, knowingly and without authority created a Facebook account in the name of H. E. The Vice President of Uganda, Jessica Alupo. The Appellant and others were alleged to have used the Facebook account to deceitfully send messages to Jude James Munyigwa, causing him to transfer UGX 1M to telephone number 0785201344, registered in the name of Mugisha Samuel, thereby securing an unlawful gain from James Munyigwa. The Appellant and others were similarly charged with the same offence involving Edimu Francis. It is said that the Appellant and others lured Edimu Francis into sending UGX 2,110,000 from his telephone number 0774597401 to 0785201344, thus securing an unlawful gain from him.

The Appellant denied committing the offence. He stated that the prosecution failed to call H. E., The Vice President, or her Principal Private Secretary to confirm that the Facebook account did not belong to her. He also claimed that A2 had stolen his Samsung phone, through which the alleged offences were carried out, at the time they were committed, asserting that if anyone committed the offences, it must have been A2.

The Trial Magistrate disbelieved and convicted him of the offences. The Trial Magistrate stated that the evidence from Alex Tugume- PW9, Bwogi Emmanuel- PW11, and A2 corroborated that one of the phones was found with a Facebook account of the Vice President and that the Appellant had created the account without authority or deception, using it without the Vice President's consent. She also ruled that the phone Appellant registered the same line in the name of Samuel Mugisha through an SMS via code 197. The number was registered when it was in the Appellant's possession. The line was associated with a Samsung Galaxy phone III, found in the Appellant's possession on 29th July 2021. The trial magistrate also said Munyigwa and Edimu were lured into sending money to the Appellant through the phone number of Mugisha Samuel, which the Appellant fraudulently registered. She disbelieved the Appellant's claim that the phone had been stolen from him.

I shall review the evidence as an appellate court and reach my conclusions. Munyigwa (PW1) and Edimu Francis (PW2) testified that they contacted the Vice President through a Facebook account that they genuinely believed belonged to the Vice President. Munyigwa (PW1) contacted her to secure a job for his wife in the army. The Vice President asked him to send money to facilitate the process. He sent UGX 1000,000 to Samuel Mugisha on 0785201344.

On the other hand, Edimu Francis reached out to the ‘Vice President’ for assistance in obtaining his benefits from NSSF. Like Munyigwa, he was also asked to send money to facilitate the process. He sent UGX 2,110,000 to Samuel Mugisha on 0785201344. These individuals never received the help they expected from the Vice President.

Although there was no direct evidence pinning the Appellant from creating the Facebook account, the prosecution called circumstantial evidence to connect the Appellant to the Facebook account.

The prosecution called several witnesses to demonstrate that the Appellant was behind the creation of the account. DC Tugume Alex (PW9 testified that he was asked to trace the owner of the phone number 0785201344, registered in the appellant’s name. He traced this phone number to Kasese. He then associated it with a phone number that it regularly calls. This led him to Tembo Amon, who was arrested. He keyed in the number on Tembo’s phone, and it showed that the number was saved under the name Teacher Solomon. Tembo then led Tugume and his team where the Appellant lived. They found that the Appellant was residing in Kasese. A search of the Appellant’s premises was carried out. Three handsets were found on the premises. Among them was an Infinite handset, which was on. The Vice President was communicating/ chatting with a prison officer called Mpaji. The Infinite handset was exhibited as PE12 Bwogi. Emmanuel (PW11), an ICT expert, found that the Vice President's Facebook account had been active on the Infinite handset since 2021. DAIP Aharimpisya (PW10), who led the search, confirmed that the Infinite handset was among the items recovered in the Appellant’s home.

On the other hand, the Appellant denied creating the Facebook account. In his defence, he claimed that the account belonged to the Vice President. He stated that failure to call the Vice President, a material witness, to testify about the Facebook account was detrimental to the prosecution’s case. He cited the Nyanzi case (I could not find this case), in which the appellant was acquitted because the First Lady was not called to testify regarding whether the appellant had annoyed her.

I have reviewed the evidence, and I am satisfied by the testimony of PW1 and PW2—that a fake Facebook account in the name of the Vice President existed. I am convinced that both prosecution witnesses interacted with the purported Vice President through the account. This interaction led them to send UGX 3,110,000 to Samuel Mugisha via 0785201344. See the testimony of PW1 and PW2. The prosecution provided mobile money accounts related to 0785201344, which showed that PW1 and PW2 had sent money to the account.

The UCC contacted MTN to provide information about the owner of 0785201344. Busilnwa Isaac (PW5), the Commercial Litigation Manager of MTN, testified that telephone number 0785201344 was first registered in the Appellant’s name. The Appellant registered the number with a UNEB identity card, PEX 8. While searching for the Appellant’s home in Kasese, the police recovered this identity card. The Appellant admitted that the UNEB identity card was his. Busilnwa Isaac, PW5, presented the findings of MTN in a report dated 21st February 2021. The report was written by MTN's then Chief Executive Officer, Mr. Wim Vanhelleputte, and addressed to ED UCC. In part, the report stated that:

*The SIM card was first registered by Solomon Njoki on 24th January 2017 by a SIM registration agent, Scovia Biira, using an employee identity card, which was an acceptable form of identification at that time. During the SIM card registration exercise in May 2017, the UCC directed a change to national ID for Ugandan nationals and required all customers to submit National ID numbers (NINs). Customers were instructed to submit NINs to licensees through a common code, 197, using SMS and/or USSD channels. Attached is the UCC notice on using shortcode 197. A submission by phone number 0785201344 of the NIN CM 94031101E9TC through USSD was made on 21st May 2017. The name activated with that NIN from NIRA is Samuel Mugisha….*

This report was improperly received in evidence as PID4 instead of an exhibit. The CEO of MTN, who signed the letter, had since left the company and the country. He was no longer available; therefore, anyone in MTN familiar with his signature could testify on his behalf. Busilnwa Isaac (PW5), the Commercial Litigation Manager, an employee of MTN, familiar with the CEO’s signature and inquiry into the telephone number, was competent to testify and present the report. Thus, the trial magistrate should have admitted the report as an exhibit. For this trial, the report from the CEO of MTN is accepted as an exhibit.

Furthermore, ASP Omara Patrick (PW12) testified that the document card history of 0785201344 showed that this SIM card had been used in the recovered handset from the Appellant’s home. Samuel Mugisha testified that while the NIN used to register the number on the MTN network was his, he did not know how they obtained his NIN. I believed him because he was honest and straightforward. All this evidence is circumstantial.

In **Byaruhanga Fodori v Uganda [2004] UGSC24 (29 July2004)**, the Supreme Court observed that:

*It is trite law that where the prosecution case depends solely on circumstantial evidence, the court must before deciding upon a conviction find that the exculpatory facts are incompatible with the innocence of the accused and incapable of explanation upon any other reasonable hypothesis than that of guilt. The court must be sure that there are no other co-existing circumstances which weaken or destroy the inference of guilt. (See:****S. Musoke V R [1958] EA 715 and Teper V R [1952] AC 480).***

The prosecution has presented sufficient evidence to establish that the Appellant owns 0785201344, the number PW1 and PW2 used to send money. Tugume Alex (PW9) found the Facebook account active on an Infinite handset belonging to the Appellant while searching his residence in Kasese. According to the testimony of Bwogi Emmanuel, an IT expert, the account was linked to an Infinite handset recovered from the Appellant’s premises. Bwogi Emmanuel confirmed that the account had been operational since 2021.

Although the Vice President did not testify regarding the account, the prosecution presented sufficient circumstantial evidence to prove that the Facebook account was created in the Vice President’s name without her authority. The Appellant had no official relationship with the Vice President; he was not her media handler. Since the Appellant had no business operating a Facebook account for the Vice President on his telephone and without any other evidence that someone else created the account, the Appellant is deemed the one who created and was operating the account.

Concerning the commission of the electronic fraud, the prosecution established that the Appellant lured Munyigwa and Edimu to send UGX 3,110,000 to 0785201344, a number which, though registered in the name of Samuel Mugisha, was associated with the Appellant. The transaction was transacted through a communication platform and mobile phones, through which the Appellant took advantage of Munyigwa and Edimu to defraud them of their hard-earned money by impersonating the Vice President. Being gullible, the two victims passed on the money to the Appellant, who never helped them. In conclusion, the Trial Magistrate rightly convicted the Appellant of committing electronic fraud contrary to section 19(1) of the Computer Misuse Act in counts 5 and 6. This ground of Appeal fails.

**THE TRIAL MAGISTRATE ERRED IN LAW IN SENTENCING HIM TO A CUSTODIAL SENTENCE INSTEAD OF DIRECTING HIM TO PAY A FINE.**

The gist of the appellant’s case is that the Trial Magistrate should have sentenced him to a fine for committing electronic fraud under section 19(1) of the Computer Misuse Act. He said the section provides a fine of 360 currency points, fifteen years’ imprisonment, or both. He said that he should have been given one since the law first provides for a fine. He said that he should have been given a fine because he is a first offender, he has elderly parents who are unwell, he is a caregiver to a child in primary four, and he is young and productive.

The Respondent opposed the appeal because the appellant was given an appropriate sentence for the offender and the crime. She advised me not to interfere with the sentence as the appellant had not made a threshold of interfering with sentences on appeal.

The appellant was sentenced to 42 months for electronic fraud under section 19(1) of the Computer Misuse Act.

During sentencing, the appellant in alloctus said:

*Am happy this case has come to an end. Justice includes mercy and forgiveness, and sometimes, someone may be a victim unknowingly. I sympathise with the victims. I never committed these crimes unless if I committed them unknowingly. My phone never had passwords; someone could have used my gargle. But since I have already been victimised, I apologise…. I could not be remorseful for the offence I never committed. The IDs were given to me. I request the court to be lenient to me on the following grounds:*

*I have no criminal records. It’s my first time.*

*I have a daughter, a P4 drop out because I was a sole provider for her. And ever since I got arrested her education has stopped. Also my parents are aged am the one to look after them.*

*I have spent long time on remand. 16 months and 20 days….*

In sentencing the appellant, the trial Magistrate said that she had considered the reasons put forward in mitigation by the appellant. But she noted that the appellant had wasted the court’s time with a protracted trial. She also said that electronic fraud cases are rampant and require deterrent sentences. She then said that while the law provided for a fine, a fine would not serve the purpose. She then sentenced the appellant to 42 months in prison. The sentence was vague about whether the one year, five months and five days the Appellant had spent on remand from 23rd February 23rd, 2022 to 27th July 2023 was deducted from the sentence.

Sentencing is best left to the Trial Court, which better understands the convict. In **Kyalimpa Edward Vs Uganda Supreme Court Criminal Appeal No. 10 of 1995, the Supreme Court,** while quoting **R vs Haviland (1983) 5 Cr. App. R(s) 109,** with approval, stated that:

*An appropriate sentence is a matter for the discretion of the sentencing judge. Each case presents distinct facts that inform the judge's discretion. It is customary for this appellate court not to interfere with the sentencing judge's discretion unless the sentence is illegal or there is a clear demonstration that the trial judge's sentence was excessively unjust.*

In this matter, the Trial Magistrate, in sentencing the appellant did not subtract one year, five months and five days, the period the Appellant had spent on remand from the sentence imposed. Failure to deduct the period spent on remand violated Article 23(8) of the Constitution, which provides that:

*Where a person is convicted and sentenced to a term of imprisonment for an offence, any period he or she spends in lawful custody in respect of the offence before the completion of his or her trial shall be taken into account in imposing the terms of imprisonment.*

The Supreme Court, in **Rwabugande Moses vs Uganda SCCA No. 25 of 2014,** held that a sentence arrived at without mathematically deducting the period spent on remand is illegal.

Therefore, since the Trial Magistrate did not deduct the period the appellant had spent on remand from a sentence of 42 months imposed on the appellant, the sentence is illegal and set aside. The appellant will be sentenced afresh.

In re-sentencing the Appellant, I have considered the reasons submitted by the appellant in mitigation of the sentence, most notably that he is a first offender and should be treated leniently. I am also alive to the fact that he is a caregiver to his lone daughter, who dropped out of school due to his incarceration. I am equally mindful that the Appellant has elderly parents who need his support. Be that as it may, I must consider aggravating factors when arriving at a sentence that will fit the offender and offence. I have considered the circumstances under which this offence was committed. The offence was meticulously planned and executed with sophistication. Offences of this kind are rising due to the abuse of digitisation and artificial intelligence by rogue elements like the Appellant. The appellant was not remorseful in his alloctus. Despite being found guilty, he still insisted on his innocence. Such a convict does not require the mercy of the court.

I am mindful that the Appellant implored the court to give him a fine because section 19(1) of the Computer Misuse Act provides a fine of 360 currency points among the penalties for electronic fraud. In Gichochi Paul v. Uganda HCCr. A No. 11 of 2004 Justice Rwamisazi Kagaba observed that:

*Where the law provides for a fine as a sentence for a certain offence in the first place, with imprisonment either as a second option or in default of paying the fine, the convicted person must be sentenced to a fine with imprisonment in default of paying the fine. If the Magistrate has to deviate from this order, he/she should do so after giving strong reasons.*

While first offenders should get non-custodial sentences, particularly in cases where a fine is the first line of sentences, there are exceptional circumstances where a fine would not achieve the purpose of sentencing, which includes reformation, retribution and deterrence. In such instances, a custodial sentence will be the most appropriate. In this case, the Appellant deserves deterrence despite being a first offender and having caregiver responsibilities. The Appellant meticulously committed the offences. He was reckless and uncaring. He was unrepentant and emboldened in asserting his innocence even in the face of overwhelming evidence against him. Therefore, given the circumstances under which he committed the offence, his unwillingness to take responsibility and the need to deter others, the Appellant is sentenced to three years’ imprisonment in counts 5 and 6 for contravening section 19(1) of the Computer Misuse Act. Considering that the Appellant spent one year, five months and five days on remand, he shall serve a net sentence of one year, six months and twenty-six days in prison for each of the two offences in counts 5 and 6. The sentences will be served concurrently.

**8. 0 Decision.**

This appeal is substantially dismissed and allowed in part with the following orders:

The sentence of the Trial Magistrate imposed on the Appellant in counts 5 and 6 is set aside and substituted with the following sentence. The Appellant shall serve a net sentence of one year, six months and twenty-six days in counts five and six. The sentences shall be served concurrently.

It is so ordered.


Gadenya Paul Wolimbwa

**JUDGE**

18th December 2024

The judgment was read in open court in the presence of the Appellant, Mr. N Kagwa – the Court Clerk and in the absence of Ms. Apolot, Senior State Attorney, who had engagements at her mother station.


Gadenya Paul Wolimbwa

**JUDGE**

18th December 2024