THEFT AND RELATED OFFENCES

Theft

The objective of the offence of theft is to prevent prejudice or unlawful appropriation of property
belonging to other persons. Under section ‘’[]=0254 of the Penal Code Act, a person commits the
offence of theft if he; fraudulently and without claim of right takes anything capable of being
stolen, or fraudulently converts to the use of any person other than the general or special owner
thereof anything capable of being stolen. The key ingredients for this offence are discussed
below:

i. Fraudulent

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

In considering whether or not there exists fraudulent intent, reference must be made to section
254 (2) of the Penal Code Act which enumerates the intents that show that the taking or
conversion was fraudulent. These are discussed below.

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

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

1
R v Fernandes [1996] 1 Cr App R 175, 188 (Auld LJ for Auld LJ, Mantell and Sachs JJ).
There need not be any permanent deprivation in fact. D may be guilty of theft even though P is
never in any danger of losing his property so long as D appropriates with the intent. 2 Conversely,
the fact of permanent deprivation is insufficient if there was no intent. But it must be clear that
the facts- the history of what D did with the goods – will often have an important bearing on the
proof of D’s intent.3 If for instance D is found respraying the car which he took from P without
his permission, it can easily be inferred that D’s intention was to deprive P permanently of it. In
every case, is for the court to determine on the evidence whether D did so intent.

R v. Williams (1953) 1 All ER 1068

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

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

b. An intent to use the thing as a pledge or security. This happens where A takes B’s goods and
intends to pledge them or give them to another person as security or a loan of money, this
amounts to a fraudulent intent because it is an obvious assumption of the rights of the owner.
2
Smith & Hogan p. 497
3
Ibid
4
(1971) 2 All ER 945.
c. An intent to part with it on a condition as to its return which the person taking or converting it
may be unable to perform.This happens where for example X who has never driven a car tells Y
that he can drive properly. Y doubts this. They make a bet and Y stekes his wrist watch. X takes
Z’s wrist from a nearby table and stekes it. The watches are handed over to A on condition that
he is to give both of them to the winner of the bet. This is theft.

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

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

5
(1924)QNN
6
Section 254 (3).
A person who takes money without the owner’s consent cannot plead, as a defence, the intention
of afterwards repaying the money. It has been suggested by various authors that this does not
cover the situation where a person helps himself for another’s money to obtain change and make
immediate or later payment.

In Kizito Ronald V Uganda,7 the trial Magistrate convicted the appellant of theft of a sum of
shillings 5,000,000/= contrary to sections 254(1) and 261 of the Penal Code Act (Cap. 120). He
sentenced the appellant to pay a fine of shillings 500,000/= or in default thereof to serve a term
of 18 months in prison. In addition, the said Magistrate made an order under section 197 of the
Magistrates Courts Act (Cap. 16) requiring the appellant to pay a sum of shillings 4,200,000/= as
compensation to the complainant. The above decision, sentence and order aggrieved the
appellant. Therefore, he appealed against them.

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

In his defence the appellant denied having received a sum of shillings 5,000,000/= from
Kanyike’s wife in March 2005. In addition, he questioned whether Kanyike had the capacity to
possess such a huge sum of money. After considering the evidence on record the learned trial
Magistrate was satisfied that the appellant was guilty of the offence of theft contrary to sections
254(1) and 261 of the Penal Code Act (Cap. 120). The appellant appealed the judgment of the
lower court on the grounds that the trial Magistrate failed to evaluate the evidence on record,

7
HIGH COURT CRIMINAL APPEAL CASE NO. 0014 OF 2008
failed to consider discrepancies and contradictions in the State witnesses’ evidence, and relied on
a confession which was retracted, to the effect of reaching a wrong conclusion.

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

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

Thus in order to justify the conviction of the appellant in the lower court, the State must show
that the evidence they presented to that court proved the following things beyond reasonable
doubt:

(a) that in March 2005 Kanyike, at his home, had a sum of shillings 5,000,000/= that was capable
of being stolen;

(b) that the appellant participated in fraudulently taking the above sum of money; and

(c) that the appellant had no claim of right to the said sum of money.

Wainaina v R (1959) EA 601

R v Williams (1953) 1 QB 660

ii. Claim of Right

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

According to section 7 of the Penal Code, a person is not criminally responsible in respect of an
offence relating to property if the act done or omitted to be done by the person with respect to the
property was done in the exercise of an honest claim of right and without intention to defraud.
Although this defence is usually raised in cases of theft, the section covers all offences relating to
property. It should be noted that the section does not require reasonableness. All that is necessary
is that the claim of right must be an honest one. Bonafide claim of right is closely related to the
defence of mistake of fact only that in this case, the accused is only mistaken in his belief that he
is entitled to claim some property. It is a defence in a charge relating to an offence relating to
property. The accused has to show that he was acting with respect to any property in exercise of
an honest claim of right and without intention to defraud e.g. a person seizes the complainant’s
property in order to enforce payment of the debt. The defence will also stand even where the
right asserted by the accused is mistaken. In Ngavana v R,8 the appellant was charged with the
theft of the heifer and claimed that it belonged to him. The appellant’s animal had gone missing
for some six months and the appellant took the animal from the complainant’s land claiming that
it was his missing animal and called evidence to this effect. The magistrate held that the animal
was the complainant’s property and that therefore the appellant could not have a claim of right to
it. On appeal, it was held that where the accused reasonably claims property as his, even if he is
mistaken, he must be acquitted.

In Francisco Sewava v. Uganda,9 the appellant was acquitted on appeal when he had been
convicted of stealing doors and roofing materials that he claimed as his and which claim he had

8
[1972] EA 559.
9
MB 60/66
put forward at his trial at his trial. It was held that however unfound the claim might be, the
appellant should not have been convicted.

In Kamori Johnson v Uganda,10 it was held that the defence of claim of right is not available
where the appellant claimed that the property belonged to some other person and not him.

iii. Taking (asportation)

This means carrying away or any removal of anything from the place which it occupied. Taking
is the actusreus in the offence of theft and includes detachment of anything as well as obtaining
possession. It must always be proved that the accused took the property in question. In the case
of Lerunyani v R,11 a passer-by saw the accused sitting outside a cattle boma. On enquiring about
buying a cow in the boma, the accused told the passer-by that the cow was owned by him (the
accused) and the accused agreed to sell it to a passer-by for Shs. 40/= and five goats. The passer-
by gave the accused Shs. 40/=. The true owner of the cow then appeared and stopped the
transaction from going further. In the magistrate’s court, the accused was convicted of stealing
cattle and he appealed. It was held that there was no ‘taking’ of the cow within the meaning of
section 268 (1) and (5) (now……………) of the Penal Code and there was no ‘conversion’ of the
cow. Accordingly, the offence of theft had not been proved.

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

R v. Taylor (1911) 1 KB 674

10
[1995] V KALR 57.
11
[1968] EA 107.
12
See section 254 (6) of the Penal Code
In Kifuko v. R,13the accused who was working in a post office took a parcel from the foreign
parcels rack and put them in the locker parcels rack. The issue was whether he was guilty of
theft. His defence was that he did not take the parcel into his possession and was not guilty of
theft. It was held that once it is proved that an accused removed an article from one place and
placed in another place with the intention of depriving the owner permanently from it is guilty of
theft. The issue is whether the item has left the place in which it was in before. If the answer is
yes, the accused will be said to have taken the property.

Taking may also be constructive, for example where a person gives apparent consent to taking
but his consent is vitiated by a trick, intimidation or mistake.

In Mapunda v R,14 the appellant was convicted of unlawfully hunting an elephant and stealing its
tuskswhich were the property of the government. After shooting the elephant, the appellant
obtained a licence and returned for the tusks. He obtained the tusks from the villagers who had
found them and took them to the appropriate officer to obtain a certificate of ownership. For the
appellant, it was argued that the offence was not one of theft but of cheating or an attempt at
stealing. It was held that the appellant stole the tasks when he took possession of them. His
subsequent actions in attempting to obtain a certificate of ownership were merely evidence of his
intention permanently to deprive the owner of them. It was further states that the offence of
stealing is the deprivation of possession not ownership- the theft is committed when he wrongly
removes the goods with the necessary intent- that is, in this case, permanently to deprive the
owner of it. That a thief obtains no title to the articles stolen. A short example might illustrate
this. a thief steals a car and then subsequently attempts to have the vehicle registration book
altered in his name. The theft here is committed when he takes the car, and the subsequent
attempt of registration would be evidence of his intention permanently to take rather than borrow
the car but the offence would be committed when he unlawfully took the car.15

iv. Things Capable of being Stolen

13
ULR 273
14
[1971] EA 413
15
Ibid, p. 415
It is not that everything can be stolen. Section 253 contains a list of things capable of being
stolen and they are of two categories; inanimate things and animals. Every inanimate thing,
which is the property of any person and which is movable, is capable of being stolen. An
inanimate thing which is the property of any person and which is capable of being made movable
is capable of being stolen as soon as it becomes movable, although it is made movable in order to
steal it. There must be an owner who must be named in the charge sheet. However, if the owner
cannot be traced, the presumption is that most inanimate things have owners and the charge sheet
will state that it is the property of a person unknown.

Valueless things such as rubbish cannot also be stolen. In Kyewawuna v Uganda,16 the accused
was working in the Bank of Uganda. The government had just changed a new currency for old
ones. He stole some of the old currency and he was charged with theft. It was held that while the
old currencies were owned, they were useless to the bank. They were of no value to the bank.

Williams v. Phillips (1957) 1 AC 5

Hibbert v. Mckierakn (1948) 2 KB 142

A human corpse is incapable of ownership but the coffin, burial clothes and jewelry are things
capable of being stolen since they are a property of a person who provided them.

Incorporeal- things without body or not of material nature, for example telephone, electricity
cannot be stolen. There are, however, offences created under the respective legislations for
illegal use of such services.

The property must be movable to be capable of being stolen. Land and buildings cannot be stolen
because they are immovable. However, a window or any other fixture detached from the house is
capable of being stolen.

v. Conversion

16
(1974) EA 293.
Conversion was defined by Atkin J. as he then was, in the case of Lancashire and Yorkshire
Railway Co. v. Mac Nicol17 as dealing with goods in a manner inconsistent with the right of the
true owner provided that it is also established that there is an intention on the part of the accused
in so doing to deny the owner’s right or to assert a right which is inconsistent with the owner’s
right.

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

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

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

Patel v R (1962) EA 509.

Special Cases

Theft by finding

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

Dutt v R (1959) EA 235

Soko v R

17
[1919] 88 KB 601 at 605.
18
See the case of Rogers v Arnortt [1960] 2 QB 244. Followed in Morjaria v R, [1972] EA 10.
If, however, the finder takes possession of property intending to look for its owner and restore
the thing to him, he does not assume the rights of the owner and does not commit theft.

Theft by Mistake

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

Theft by Trick

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

However, theft by trick must be distinguished from obtaining by false pretence whereby the
offence of false pretence involves a situation where the owner consents to be permanently
deprived of the thing.

Situation of Husband and Wife

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

Cattle Rustling

Under section 266 of the Penal Code, the offence of cattle rustling is committed when a person:
19
Section 260 of the Penal Code .
(a) moves from a community where he or she is ordinarily resident to another community and
steals or attempts to steal any cow, bull, ox, ram, ewe, wether, goat, pig, ass, mule, horse, mare,
gelding or camel, or the young of any such animal from that other community and who at the
time of, or immediately before, or immediately after the time of the stealing or attempted
stealing, uses or threatens to use a deadly weapon or causes death or grievous harm to any
person;

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

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

Corruption

This is an act usually implying money or gift given that alters the behaviour /decision of the
recipient in ways not consistent with the duties of that person or in breach of law. Under the Anti
Corruption Act of 200920 there several instances where one commits the offence of corruption.
These include: solicitation of acceptance; offering or granting; diversion or use by public
officials; offering or giving or solicitation; fraudulent acquisition of property and neglect of duty
for personal gain. In the case of Uganda Vs Moses Ndifuna21Justice JB Katutsi convicted the
accused a Magistrate Grade 2 of Mbarara for having accepted a bride of 200,000 shillings to
reverse an earlier order he had issued.

Bribery constitutes a white collar crime and is defined by Black's Law Dictionary as the offering,
giving, receiving, or soliciting of any item of value to influence the actions of an official or other
person in discharge of a public or legal duty 22. The bribe is the gift bestowed to influence the
recipient's conduct. It may be any money, good, right in action, property, preferment, privilege,
emolument, object of value, advantage, or merely a promise or undertaking to induce or
influence the action, vote, or influence of a person in an official or public capacity.

20
Supra Note, 45.
21
High Court Anti Corruption Division Session Case No. 6 of 2009 (unreported)
22
See: www.blackslawdictionary.com( Accessed on 30th December 2009).
One must be careful of differing social and cultural norms when examining bribery. Expectations
of when a monetary transaction is appropriate can differ from place to place. Tipping, for
example, is considered bribery in some societies, while in others the two concepts may be
interchangeable.

Simon musoke v r. especially at page 18.

disproportionately on the bottom billion people living in extreme poverty who cannot afford to
pay and who thus receive sub-standard treatment from officials.

The offence of embezzlement refers to a situation where a person, who being an employee,
servant or officer of the government or public body; a director, officer or employee of a company
or corporation; a clerk or servant employed by any person, association or religious or other
organisation; a member of an association or religious organisation steals any chattel, money or
valuable security- being the property of his or her employer, association, company, corporation,
person or religious or other organisation; received or taken into possession by him or her for or
on account of his or her employer, association, company, corporation, person or religious or
otherorganisation; or to which he or she has access by virtue of his or her office.23

The ingredients of the offence of embezzlement with regard to government employment were
spelt out in the case of ABAHIKYE MOSES Versus UGANDA24to be the following:

(a) That the accused is employed by the government;

(b) That he stole employer’s property i.e. money or any other chattel capable of being stolen;
(c) That the property came into his possession by virtue of his employment.
With regard to private employment, the ingredients of the offence of embezzlement were
discussed in the case of NUUHU KALYESUBULA, KATO CHICAGO and RUTH BARYA
versus UGANDA25 arising out of Section 268 of the Penal Code Act and currently Section 19 of
the Anti Corruption Act to be the following:

“Any person who being:-

23
Section 19 of the Anti- Corruption Act No.6 of 2009.
24
High Court Criminal Appeal No. 0010 of 2009 (Arising out of Criminal Case No. 235 of 2007).
25
Court of Appeal Criminal Appeal No. 70 0f 2008 ( Appeal from the judgment and the orders of the High
Court of Uganda at Kampala ( Hon. Justice C.A. Okello,J) dated 1st July 2008.
(a) ..........................................
(b) A director, officer or employee of a company or corporation;
(c) ....................................
(d) .....................steals any chattel, money or valuable security-
(e) Being the property of his or her employer,
(f) ........................................
(g) To which he or she has access by virtue of his or her office, commits the offence of
embezzlement.26
The offence of causing financial loss refers to a situation where any person employed by the
Government, a bank, a credit institution, an insurance company or public body, who in the
performance of his or her duties, does any act or omits to do any act knowing or having reason to
believe that such act or omission will cause financial loss to the Government, bank, credit
institution, insurance company, public body, or credit institution.27

26
The facts of the case were that the three appellants were employed by Evatex Co, Ltd.The 1 st and 2nd
appellants were employed as loaders/ store attendants and the 3rd appellant was a receptionist/ sales
lady. As loaders or store attendants, the duties of the 1st and 2nd appellants were loading and offloading
bales of clothes at the company’s stores at Natete and at the sales office / shop on Nabugabo Road. The
3rd appellant’s duty was to open the Natete store at 8:30 am and close it at 5:00 pm and to keep custody
of the keys. The work practice was that when bales of clothes were required from Natete, all the three
appellants in the company of their senior officials of Evatex Co. Ltd would travel together to Natete. On
arrival at the store, the house maid to the land lady MrsLamulafu (PW3), who used to keep the keys for
the outer gate would open it in the presence of the co-workers. After removal of the merchandise, the
store and outer gate would then be locked, and the gate key returned to PW3 until the next trip. The
company policy or working rule was that no employee of any description whatsoever was permitted to
enter the store alone. MrsLamulafu however, was not aware of this policy with result that on several
occasions, she gave the gate key to the 1 st appellant who either would arrive alone or in the company of
the 2nd appellant. Occasionally, the 3rd appellant would be with the two. These visits were
either in the early morning or late in the evening. On such visits, the appellants would load
and take away some bales of clothes without the knowledge of the top most officials of the
company. An audit exercise was carried out which revealed that between January 2006 and
December 2006, the company lost 1246 bales of clothes worth Shs 200m. During internal
investigation into the loss by the company, the three appellants were arrested by the police
later and were ultimately charged in court with embezzlement. They were convicted of Theft
instead of embezzlement. On the first appeal, the High Court reversed the trial court’s
conviction of Theft to embezzlement on the ground that the evidence adduced by the
prosecution supported the offence of embezzlement hence this appeal to the court of
appeal. In the Court of appeal, the appeal was dismissed and court upheld the conviction of
embezzlement.
27
Section 20 (1), of the Anti Corruption Act.
The term “loss’’ was also defined in the case of KASSIM MPANGAversusUGANDA28 to mean
inter alia a detriment or disadvantage resulting from deprivation. Put differently, to suffer loss is
to cease to possess something, to be deprived of or part with something of one’s possession. It
was further held that “loss” is generic and relative term. It signifies the act of losing or the thing
lost; it is not a word of limited, hard and fast meaning, and has been held to be synonymous with
or equivalent to “damage”, “damages”, :deprivation”, “detriment”, “injury” and “privation”.

It was also held in the case of Uganda Versus B.S Okello, Ocira George and OkotJalon 29by
Hon. Justice Paul Mugamba that Causing Financial Loss is an offence committed when any
person employed by a public body, for instance in this case the East Acholi Co-operative Union
Ltd, in the performance of his duties does any act or omits to do any act knowing or having
reason to believe that such act or omission will cause financial loss to the public body. 30

2.2 The meaning of the term ‘management’

This refers to efficiency in detection, investigation, prosecution and adjudication of economic
crimes with regard to the existing legal and institutional framework.

2.3 Current trends of economic crime in Uganda

2.3.1 Complexity in the commission of the economic crimes

Economic crime in Uganda has evolved over time and manifests itself in different ways. For
instance, currently economic crime is committed in a more sophisticated, complex and hi-tech
manner than it was in the past where one would be faced with simple, ordinary and straight
forward thefts and frauds. The use of computers in the commission of these crimes is on the
increase and therefore very difficult to detect, investigate, prosecute and adjudicate. A biggest
percentage of economic crimes are currently committed with the use of computers especially by
the technocrats /experts themselves manipulating the systems which they are supposed to
28
Supreme Court Criminal Appeal No. 30 of 1994 (Arising out of High Court Criminal Appeal
No. 21 of 1994 arising from a conviction by Mengo Chief Magistrates’s Court in Criminal Case
No. U. 1561/1992)
29
HCT-00-ACD-CRS No.008 of 2009 ( Arising from Buganda Road Chief Magistrate’s Court CR.
Case No. 0603/2008)
30
In this case, the accused were employees of East Acholi Co-operative Union Ltd and in
performance of their duties caused financial loss to the Co-operative Society.
manage, maintain and protect by stealing huge sums of money just at a click of a button. 31 One of
the cases that were committed in such a manner is a case involving Shell Uganda in the case of
Uganda versusJosephGaruhanga32 . In this case, the accused was working in the finance
department of Shell Uganda at the Shell head office. Towards the end of 2003, he manipulated
the computerised financial system of the company and led to loss of Three Billion Five hundred
million shillings just in less than three months. Shell operated two bank accounts in Stanbic
Bank, one for US Dollars and another for the local currency. Using the computer system in place
and using a colleague’s pass word and user Identity, he managed in a very complicated way to
manipulate the exchange rates whereby it appeared like shell had got money out of Stanbic dollar
account into Stanbic local currency account whereas not in actual and real sense. After creating
that impression on the accounts, he would then look for companies and individuals who were
dealing with Shell and he would promise to credit the accounts they held with shell and then they
would pay him cash which he could put to his own use to the detriment of the company. It was
not until December 2003 when the Chief Financial controller Shell Uganda unearthed the fraud.
The accused was then charged with embezzlement of Three billion Five hundred million Uganda
Shillings (UShs 3,500,000,000). The matter began in court in early 2004 but is ongoing to date
(2011) because of its complexity. While adducing evidence, the witnesses had to bring the
computers to court to explain how the offence was committed. They in addition used charts to
ensure that court understood how the system manipulation was done. The magistrate who is
handling the matter was transferred but his predecessor could not take over the matter because of
its complexity. He has to come from whichever station he is working at to hear it whenever it
comes up. This is because, it is feared that any new magistrate would not properly understand it
because of the complexities.33

31
This information was revealed by almost all most investigators and prosecutors that were
interviewed during the study.
32
Jinja Road CRB 493/2004
33
This information was revealed by the prosecutor in the office of the Directorate of Public
Prosecutions handling the case.
2.3.2 Economic crimes in the banking institutions
It is also important to point out that as another trend, currently embezzlement and causing
financial loss in the financial institutions (banking) sector is on the rise as compared to other
institutions and organisations. Uganda’s banking sector, though highly competitive, continues to
struggle with the problem of fraud. The 2010 Uganda Police Crime Report showed that 145
cases of fraud in financial institutions were filed. 34This same position was reiterated by the
Assistant Registrar of the Anti Corruption Division of the High Court, the Principal State
Attorney in charge of Prosecutions at the same court and almost all the investigators and the
prosecutors that were interviewed during the study. For example, more than 40% of the total
cases that the Anti Corruption Division of the High Court has handled since its inception involve
banking institutions as victims.35

2.3.3 Companies formed for fraudulent purposes

Another new trend in the commission of the offences of embezzlement and causing financial loss
is that some companies/ organisations are formed specifically with the sole aim of committing
the offences. A case in point is the case of Uganda versusBalikoowa Nixon and Kasaga
Joshua36. In this case the accused formed a company known as Dutch International Limited and
any member of the public who wished to join would apply to be a member therein. The members
were made to pay membership fees and afterwards made to pay deposits. At the end of every
thirty one (31) working days, the members would be given some money as Principal and interest.
This went on for a few months and members got confidence in the system and even recruited
many others into the company and the cycle. After some time, the accused convinced their
members not to withdraw money monthly but to leave it to accumulate more interest so that they
withdraw at once and in much larger sums. Because they had gained confidence in the system
and the suggestion seemed to be to their benefit, they duly complied. After the money had
34
Daily Monitor Thursday, October 27, 2011.
35
This information was revealed by the Assistant Registrar of the Anti Corruption Division of
the High Court and the Principal State Attorney stationed at the Anti Corruption Division.
36
Criminal Session Case No. 64 of 20 10. The accused persons were charged with
Embezzlement of Shs 3,366,926,890 (Three Billion three hundred sixty six million, Nine
Hundred and twenty six thousand eight hundred and ninety Shillings only). It was alleged
that the accused and others still at large between the year 2007 and October 2008, at Dutch
International Head Offices, KamuKamu Plaza, Entebbe Road in Kampala City in the Kampala
District, being Director and Assistant Country Coordinator of Dutch International Ltd
respectively stole Uganda Shillings 3,366, 926,890, the property of various members of
Dutch International Ltd, to which they had access by virtue of their respective offices.
accumulated, the accused closed business premises, switched off their phones and disappeared
from their known areas of operation. So many people country wide in the districts of Kampala,
Jinja, Mbale, Mbarara and Kapchorwa where the accused had opened branches and were duly
operating lost large sums of money. Later when the members reported the matter to police,
investigations commenced and the Directors were eventually arrested. Their personal bank
accounts were inspected and were found to have huge sums of money thereon. On the contrary,
the Company accounts where deposits of members were supposed to be kept had been closed
with no money thereon. The matter is currently being prosecuted in the Anti Corruption Division
of the High Court.37

As the above matter was being investigated, it was established that before forming Dutch
International, the accused and others who have not been arraigned had earlier on formed another
company in the names of Caring For Orphans, Widows and the Elderly (COWE) which they
used to defraud the members of public of colossal sums of money which they had illegally
collected from them promising to repay the principal deposit and interest of 30% after thirty one
(31) working days. This went on for some time and later the accused closed business and
disappeared having defrauded so many people. Following complaints from the various victims of
COWE, police instituted investigations leading to case reference number Kabale CRB
539/2007Uganda versusBalikoowa Nixon and Another. In March 2011, Balikoowa Nixon was
convicted of embezzlement of Uganda Shillings 225,195,000 (Two hundred and twenty five
million, one hundred and ninety five thousand shillings only). He was sentenced to four years
imprisonment and also ordered to compensate the various victims’ money totalling the above
sum. Balikoowa is currently serving that prison term of sentence while facing charges under
Dutch International discussed in the preceding paragraph. 38 It is however, worth noting that the
accused was not working alone and some of the people he was working with have not been
arrested and the likelihood that they will re-organise themselves and start a similar scheme again
to defraud members of the public is very high.

37
This information was revealed by the Prosecutor in the office of the Directorate of Public
Prosecutions who was prosecuting the matter.
38
This information was revealed by a police detective who investigated the case.
Other cases in point are cases involving Makindye Division in the Kampala City Council in the
Kampala District in Uganda versus Ssemuwemba Benedict and others39 .

In these cases, the accused who were employees within Makindye Division of Kampala City
Council in the Kampala District formed various companies one called KIKA Ltd and another
PSALMS 24:1 whose sole purpose was to defraud the Division of colossal sums of money. They
opened bank accounts for each company in different banks. They purported that those companies
had on various occasions at various places done and completed drainage works for the Division.
The Division engineer also in collusion issued certificates of completion confirming that indeed
the companies had done work satisfactorily and recommended to the Accounting officer to pay
the companies. Because the Accounting officer believed in the Certificate of completion, he
approved payment to the companies and indeed, the accounts Department wired Uganda
Shillings One hundred and fifty Million (Ushs 150,000,000) on the various company bank
accounts. It was after a whistle blower informed the Accounting officer that he had approved
payment for no work done that the latter also went on the ground to physically inspect and he
found no single piece of work had been done. His attempt and effort to block the money on the
bank accounts were fruitless because by that time, all the money that had been deposited thereon
had been withdrawn. Investigations revealed that the accused was a Director in both companies
and on being interrogated, he admitted the offence and even confirmed that he had formed the
two companies with the sole purpose of defrauding the Division. It was also established that he
did this with the knowledge and connivance of the Division engineer and the Cashier. They were
all charged with Causing Financial loss of Uganda Shillings One hundred and fifty million (Ushs
150,000,000) to the Division and the matter is under hearing before the Anti Corruption Division
of the High Court.40

2.3.4 The element of collusion and connivance

Another developing trend in the commission of economic crime is the element of collusion and
connivance. Because of the complexity in the commission of these offences, it is no longer
possible for one individual to successfully commit them to their conclusion in isolation. It

CID HQTRS E/331/2008 and CID HQTRS GEF 475/2008

39

40
This information was revealed by Prosecutor in the office of the Directorate of Public
Prosecutions who was handling the matter in court.
requires co-operation, coordination and collaboration by various players in the system and even
outside the system to be able to complete the commission of the offences.

For example, in 2006, Standard Chartered Bank realised that the bank had lost Uganda Shillings
five billion (Ushs 5,000,000,000) within a period of five years due to collusion and connivance
of bank employees in different sections. This resulted into the case of Uganda versus Benjamin
Mugumeand five others41. In this case, the six accused persons were all employees of Standard
Chartered Bank Speke Road branch. Two were working in the Central Cash office which keeps
all the monies in the bank and disburses it to other offices every morning. The other two were in
charge of the Automated Teller Machines (ATM) while the rest were in charge of Tellers. The
reason why each department had at least two people was for the purpose of checking on one
another. However, they all ended up on colluding and conniving thereby causing the bank a
financial loss of large sums of money. The officials in charge of Central cash would withdrawal
money purportedly for the tellers and the Automatic Teller Machines but the cash would not be
posted to their destinations. Instead, it would be diverted to the benefit of individuals with the
knowledge of all the six employees. This went on un detected for a period of five years because
there was no simultaneous checking. It was when the top officials of the bank decided to check
all departments simultaneously that this fraud was discovered. By this time, the bank had lost
about Five billion Uganda Shillings (Ushs 5,000,000,000). The accused are currently facing
charges of Causing Financial loss before the Anti Corruption Division of the High Court.42

Also, in the case of Makindye Division already discussed above, the element of collusion and
connivance played a very instrumental role. If the Division engineer had not issued a certificate
of completion, no payment would have been approved and the Division would not have lost the
large sums of money it lost.

It was also revealed during the study that in the majority of cases involving the mismanagement
of Global Fund to Fight HIV AIDS, Malaria and Tuberculosis, the element of collusion with the
outsiders who formed suppliers and service providers played a very major role in causing
financial loss and embezzlement of Global Funds. Because of this collusion, it has not been easy
for the investigators to get any incriminating evidence from the purported service providers. A
41
CID HQTRS E/ 767/2006
42
This information was revealed by the Prosecutor in the office of the Directorate of Public
Prosecutions handling the case in court.
case in point is CID HQTRS E/487/2006 (Uganda versus MutaweRogers). In this case, the
Directors of the above named company received Uganda Shillings Thirty Eight million, Four
Hundred and sixty thousand Shillings (38,460,000) from Global Fund whose purpose was to
sensitize the youth about HIV AIDS in the Kawempe District in Kampala City in the Kampala
District. The accountabilities submitted indicated that out of that money, more than 50% was
paid to a certain company for Hall Hire and meals where the workshops allegedly took place.
Investigations revealed that no such workshops took place but the receipts were issued from that
company and were therefore not forgeries. Investigations revealed that the proprietors of that
company issued the receipts for large sums of money which they had not received after
conniving with the people who were purportedly organisers of the workshop.43

2.3.5 Procurement Fraud

Another developing trend in the commission of economic crime is in the area of Procurement. It
has been established that procurement fraud is on the increase despite the fact that there are laws
and Regulations in place to regulate the Procurement and Disposal of Public Assets. 44 This has
affected both the central and local governments where large sums of money have been
embezzled and or lost by flouting the procurement procedures. Some of the cases in point
include the case of Uganda Versus Eng. Bagonza Samson45. In this case, it was alleged that the
accused who was the Director of Engineering/ Engineer –in- Chief in the Ministry of Works and
Transport by undertaking or causing to be undertaken the additional construction works on
Entebbe- Zaana – Kibuye High way at additional Cost of Shs 1,645,145,325 (Uganda Shillings
One Billion, Six hundred and forty five million, One hundred and forty five thousand three
hundred and twenty five without approval and or necessary authorisation under the Public
Procurement and Disposal of Public Assets Act. The accused was convicted of causing financial
loss of the above stated amount of money and sentenced to three years imprisonment. While
passing the sentence, Hon. Justice J.B.A Katutsi, the then Head of the Anti Corruption Division
of the High Court made the following observation:

“Surely, it did not need a professional civil engineer to know that there was in place a
Body known as The Public Procurement and Disposal of Public Assets Authority and the
43
This information was revealed by a police detective who investigated the case.
44
The Public Procurement and Disposal of Public Assets Act No.1 of 2003.
45
Anti Corruption Division HCT-CRIM-SES No. 009/2009.
 Public procurement and disposal of public Assets Regulations. It did not require a
professional civil engineer to know that the Act was to apply to all Public procurement
and disposal activities and in particular to all public funds. It did not require a
professional engineer to know the regulations were not meant to be idle but to be
followed to the letter. This type of impunity is something that must be stumped out by
giving deterrent sentence. This culture of impunity must be dealt with courageously and
firmly”.

Another case in point is the one involving the former Vice President of Uganda Professor Gilbert
Bukenya in the case of Uganda Versus Prof. Dr. Gilbert Bukenya46. This matter is currently in
Court and the former Vice President is alleged to have flouted the procurement procedures and
regulations while procuring executive vehicles intended for use during the Common Wealth
Heads of Government Meeting (CHOGM) 2007.47

2.3.6 Cross-border economic crimes

It is also important to note that economic crimes are currently committed in a more organised
manner and are cross-border. This makes it very complicated for the investigators and
prosecutors especially who are less trained and less facilitated than the perpetrators of the crimes.
Thisrequires international cooperation which at times is not easily forthcoming and attainable.
Another impediment with regard to cross-border crimes is in respect of the laws. Our law on
extradition is weak and can only be applied in countries which have extradition arrangements
with Uganda.48

Robbery

Under sect 286

Aggravate robbery
46
Anti Corruption Division Criminal Case No.HCT-00-CSC-94/2011.
47
This information was revealed the prosecutor in the office of the Inspectorate of
Government handling the case.
48
This information was revealed by a prosecutor in the office of the Directorate of Public
Prosecutions.
Attempted robbery under sect 287

Phorm v motho trade association 1937 ac 797. The case defines menace

Kaguru v r

Okech v r

Uganda v swahilimikibadi and anor 1995 klr